09-001065TTS Miami-Dade County School Board vs. Brent Rich Status: Closed Recommended Order on Monday, October 19, 2009.

Summary: Petitioner should terminate the employment of a male educational support employee for harassing a female employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-1065

)

BRENT RICH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference at sites in Tallahassee and

Miami, Florida, on August 3, 2009, before Administrative Law

Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the Notice

of Specific Charges and, if so, the discipline, if any, that

should be imposed against Respondent’s employment.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on February 11, 2009,

the School Board of Miami-Dade County, Florida (the School

Board) voted to suspend the employment of Brent Rich

(Respondent) and to terminate his employment, subject to his

right to request a formal administrative hearing. Respondent

timely requested a formal administrative hearing to challenge

the School Board’s action, the matter was referred to DOAH, and

this proceeding followed.

On March 20, 2009, the School Board filed a Notice of

Specific Charges which set forth the factual allegations against

Respondent, who is an educational support employee (a school

monitor). Based on those factual allegations the School Board

alleged in Count I that Respondent was guilty of Misconduct in

Office; alleged in Count II that Respondent had violated School

Board Rule 6Gx13-4A-1.0 (pertaining to Equal Opportunity and

Assignment); alleged in Count III that Respondent had violated

School Board Rule 6Gx13-4A-1.21 (pertaining to Responsibilities

and Duties); and alleged in Count IV that Respondent had

violated School Board Rule 6Gx13-4A-1.213 (pertaining to the

Code of Ethics). In taking this proposed action, the School

Board relied on the applicable collective bargaining agreement

and certain statutes, which will be set forth below. Unless

otherwise noted, all statutory references are to Florida

Statutes (2009).

At times relevant to this proceeding, Respondent was

assigned to work at the David Lawrence K-8 Center (Lawrence

Center), which is a public school in Miami-Dade County.

At the final hearing, the School Board presented the

testimony of Tonia Durden (formerly known as Tonia Williams 1 ),

Danita Staples, Cassandra Santos, Lea Coto, Deborah Johnson-

Brinson, Bernard Osborn, Andrea Williams, and Dr. Jimmie Brown.

All of the School Board’s witnesses are School Board employees.

At the times relevant to this proceeding, Ms. Durden,

Ms. Staples, Ms. Santos, and Ms. Coto were educational support

employees assigned to the Lawrence Center, Ms. Osborn was an

assistant principal of the Lawrence Center, and Mr. Osborn was

the principal of the Lawrence Center. At the times relevant to

this proceeding, Andrea Williams was an investigator employed by

the School Board’s Office of Civil Rights Compliance and

Dr. Brown was employed by the School Board’s Office of

Professional Standards. Ms. Durden and Andrea Williams are not

related. The School Board offered 40 sequentially-numbered

Exhibits, each of which was admitted into evidence.

Respondent testified on his own behalf, but he offered no

other testimony and no exhibits.

A Transcript of the proceedings, consisting of one volume,

was filed on September 28, 2009. Each party filed a Proposed

Recommended Order, which has been duly-considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the School Board was the

constitutional entity authorized to operate, control, and

supervise the public schools in Miami-Dade County, Florida.

2. The School Board has employed Respondent for

approximately 15 years as a school security monitor. As such,

at all times relevant to this proceeding, Respondent was a non-

probationary “educational support employee” within the meaning

of Section 1012.40, Florida Statutes, whose employment can be

terminated for reasons stated in the applicable collective

bargaining agreement, which is the contract between the Miami-

Dade County Public Schools and the United Teachers of Dade (the

CBA). Article XXI, Section 3.D of the CBA provides that

educational support personnel can be terminated for “just

the CBA as follows:

. . . Just cause includes, but is not

limited to, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, and/or conviction of a

crime involving moral turpitude. Such

charges are defined, as applicable, in State

Board Rule [Florida Administrative Code

Rule] 6B-4.009.

3. During the 2007-2008 school year, Respondent was a

school security monitor assigned to the Lawrence Center. Prior

to that assignment, Respondent had been assigned to Miami Beach

Senior High School (Beach High School). While at Beach High

School, there was a probable cause finding that Respondent had

engaged in an inappropriate sexual relationship with a high

school student who was over 18 years of age. As a result,

Respondent’s employment was suspended without pay for a period

of 30 days. Respondent accepted the 30-day suspension and

agreed not to appeal.

4. Ms. Durden began working as a Data Input Specialist at

the Lawrence Center in May of 2008. Shortly after her arrival,

Respondent asked Ms. Durden (then known as Ms. Williams), who

was on her way to lunch, to bring him back lunch. The request,

which Ms. Durden denied, caused her to feel uncomfortable.

Thereafter, Respondent came to come to Ms. Durden’s work area on

several occasions and asked her for the mints that she kept on

her desk. Ms. Durden believed that Respondent was leering at

her. Ms. Durden clearly disliked Respondent and felt

uncomfortable in his presence.

5. On June 3, 2008, Respondent was in the parking lot area

when Ms. Durden walked by to retrieve an object from her car.

Respondent was talking to someone in a parked vehicle. The

identity of the person in the parked vehicle could not be

established and there was no evidence as to the subject of the

conversation between Respondent and the unidentified person in

the vehicle. As Ms. Durden walked by, Respondent tried to get

her attention by yelling out to her “Hey baby.” Ms. Durden did

not respond. When she was on her way back into the school,

Respondent told her, “Ms. Williams, I know you heard me speaking

to you.” Ms. Durden (Williams) then told Respondent, “My name

is not ‘hey baby.’ My name is Ms. Williams, and you address me

as such.” There was no evidence that Respondent continued to

address Ms. Durden inappropriately.

6. On June 5, 2008, Ms. Durden walked into the after care

office to speak to Ms. Staples, who was working as an After Care

Specialist. Respondent was in the after care office with

several other employees, both male and female. When Ms. Durden

walked into the after care office, Respondent blurted out “my

dick is hard.” Ms. Durden immediately left the room feeling

disgusted by Respondent’s remark. Ms. Staples testified that

Respondent made the statement “my dick is on hard.” Ms. Staples

and the other employees who had been meeting in the after care

office also immediately left the office after Respondent’s

statement. Ms. Staples and her colleagues were shocked by

Respondent’s statement. 2

7. On June 6, 2008, Ms. Durden and Ms. Santos passed out

paychecks or pay stubs to employees. Respondent appeared at the

threshold of Ms. Durden’s office, which is part of the main

office, and asked for his paycheck. Ms. Durden asked Respondent

to leave while she sorted through the paychecks. Ms. Durden was

uncertain whether Rich was Respondent’s first name or last name.

There was a verbal exchange between Respondent and Ms. Durden as

to that issue. Respondent remained outside of Ms. Durden’s

office, but in a position where he could observe her. Ms.

Durden testified, credibly, that Respondent was leering at her.

Ms. Durden became so uncomfortable that she started shaking.

8. Prior to June 6, 2008, Ms. Durden had told Ms. Santos

that she did not like Respondent and felt uncomfortable around

him. Ms. Santos attempted to keep Respondent away from

Ms. Durden by offering to get anything he might need from the

main office and bringing it to Respondent’s duty station. On

one occasion, Ms. Santos observed Respondent staring at

Ms. Durden’s rear end.

9. On June 6, 2008, Ms. Santos observed that Ms. Durden

was very uncomfortable being in Respondent’s presence. She

intervened by finding Respondent’s paycheck and bringing it to

him.

10. Ms. Durden reported these incidents first to

Ms. Johnson-Brinson (an assistant principal) and then to

Mr. Osborne (the principal). Thereafter the School Board

followed all relevant procedures leading up to its vote to

discipline Respondent by terminating his employment.

11. Ms. Johnson-Brinson is not aware of any complaints

from any Lawrence Center employees other than Ms. Durden

pertaining to inappropriate behavior by Respondent.

12. Mr. Osborn testified as to the reasons he recommended

the termination of Respondent’s employment. Part of those

reasons related to behavior by Respondent during his tenure at

the Lawrence Center that was not alleged in the Notice of

Specific Charges. That non-alleged behavior is irrelevant and

has not been considered by the undersigned in reaching the

findings and conclusions set forth in this Recommended Order. 3

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

14. Because the School Board seeks to terminate

Respondent’s employment and does not involve the loss of a

license or certification, the School Board has the burden of

proving the allegations in its Administrative Complaint by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence. McNeill v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v.

School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So.2d 883 (Fla.

3d DCA 1990).

15. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

16. In Count I of the Notice of Specific Charges, the

School Board charged Respondent with “misconduct in office.”

The State Board of Education has defined the term “misconduct in

office” by Florida Administrative Code Rule 6B-4.009(3), as

follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual’s effectiveness in the

school system.

17. In prosecuting Count I, the School Board relies on

Florida Administrative Code Rule 6B-1.001, which sets forth the

Code of Ethics of the Education Profession in Florida, as

follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of

maintaining the respect and confidence of

one’s colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

18. In prosecuting Count I, the School Board also relies

on Florida Administrative Code Rule 6B-1.006, which sets forth

the

Principles of Professional Conduct for the Education Profession

in Florida and provides, in relevant part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly process of education or

which creates a hostile, intimidating,

abusive, offensive or oppressive

environment; and further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

19. To prove misconduct in office, the School Board must

establish by a preponderance of the evidence that Respondent’s

conduct: (1) violated the Code of Ethics and the Principals of

Professional Conduct; and (2) impaired his effectiveness in the

school system.

20. Citing Mendoza v. Borden, Inc. , 195 F.3d 128 (11th

Cir. 1999), Respondent correctly argues that courts evaluate

claims of sexual harassment by first determining whether an

employee subjectively perceives behavior as sufficiently severe

and pervasive to alter the terms and conditions of employment.

Next, the analysis seeks to determine if that subjective

perception is objectively reasonable. The environment must be

one that a reasonable person would find hostile or abusive.

21. The School Board established by a preponderance of the

evidence that Respondent engaged in a pattern of conduct towards

Ms. Durden that created a work environment that reasonably

interfered with the performance of her work. Prior to

Respondent’s comment in the after care office, Respondent’s

behavior toward Ms. Durden may be described as unwelcomed

flirting and may or may not have been found to constitute

harassment. After Respondent’s lewd, indecent comment in the

after care office, Ms. Durden was justified in feeling

“disgusted” and “uncomfortable” around Respondent. That

alarming comment left no doubt that Respondent’s behavior

constituted sexual harassment of sufficient seriousness to

impair his effectiveness in the school system. 4

22. School Board Rule 6Gxx13-4A-1.01 is styled “Equal

Opportunity Employment and Assignment” and explicitly prohibits

harassment or discrimination based on an employee’s gender. The

School Board’s proof that Respondent harassed a female co-worker

established that Respondent violated that rule as alleged in

Count II of the Notice of Specific Charges.

23. In Count III of the Notice of Specific Charges, the

School Board has charged Respondent with violation of School

Board Rule 6Gx13-4A-1.21, which sets forth policy pertaining to

the responsibilities and duties of School Board employees. As a

School Board employee, Respondent is expected to comply with the

Rule, which provides as follows:

All persons employed by The School Board

of Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system. Unseemly conduct or the

use of abusive and/or profane language in

the workplace is expressly prohibited.

24. There can be little or no doubt that Respondent’s

behavior described herein violated this rule as alleged in Count

III of the Notice of Specific Charges.

25. School Board Rule 6Gx13-4A-1.213 sets forth a Code of

Ethics which requires a school board employee, among other

things, to treat all persons with respect. The School Board

established by a preponderance of the evidence that Respondent’s

behavior violated that rule as alleged in Count IV of the Notice

of Specific Charges.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the

final order terminate Respondent's employment.

DONE AND ENTERED this 19th day of October, 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of October, 2009.

ENDNOTES

1 / For ease of reference, Ms. Durden will be referred to by her

married name.

2 / In reaching these findings, the undersigned has not ignored

Respondent’s version of the events. Succinctly stated,

Respondent testified that the employees were having a general

discussion about sex at the time Ms. Durden entered the room.

Respondent’s testimony is inconsistent with Ms. Durden’s

testimony, which was corroborated by Ms. Staples testimony.

Respondent’s testimony lacks credibility. The undersigned has

also considered that Ms. Durden embellished the incident when

she related the incident to Ms. Santos. Ms. Durden told

Ms. Santos that Respondent made the objectionable remark in

reference to Ms. Durden’s rear end.

3 / Due process prohibits a district school board from

disciplining an employee based on matters not alleged in the

notice of charges, unless those matters have been tried by

consent. See Lusskin v. Agency for Health Care Administration ,

731 So. 2d 67, 69 (Fla. 4th DCA 1999).

4 / A loss of effectiveness in the school system can be inferred

by the severity of the conduct. See Walker v. Highlands County

School Board , 752 So. 2d 127 (Fla. 2d DCA 2000).

COPIES FURNISHED :

Janeen L. Richard, Esquire

Miami-Dade County School Board Attorney's Office

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 912

Miami, Florida 33132

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.