16-003301 Lee County School Board vs. Orlando Torres Status: Closed Recommended Order on Monday, October 31, 2016.

Summary: Comments to students, including "if I had sex with you, I'd break you," "I like ass," & "would get involved with a married man," were just cause for discharge. Lee Cnty. Sch. Bd. Policy 5.03(2)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 3301

ORLANDO TORRES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) heard this case in

Fort Myers, Florida , on September 7 and 8, 2016.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Colema n and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

Did Petitioner, Gregory K. Adkins, as Superintendent for t he

Board of the School D istrict of Lee County, Florida

(Superintendent) , prove just cause to terminate the employment of

Respondent, Orlando Torres?

PRELIMINARY STATEMENT

By petition dated April 29, 2016, the Superintendent sought

to terminate the DistrictÓs employment of Mr. Torres. The

Superintendent seeks to terminate Mr . TorresÓ employment for just

cause as permitted by section 102.33(1)(a), Florida Statutes

(2016) . 1/ The petition says that Mr. Torres violated School Board

Poli cy 5.02, Professional Standards ; Policy 5.03, General

Requirements for Appointment or Employme nt; Policy 5.29,

Complaints Relating to Employees; and Policy 5.30, Complaint

Procedures for Sexual Harass ment by Employees. Finally, the

petition asserts that Mr. Torres violated P aragraph 7.12,

Workplace Civility, of the Support Personnel Association of Lee

County (SPALC) collective bargaining agreement, which prohibits

profane or harassing conduct in the workplace.

Mr. Torres disputed the charges and requested a formal

administrative hearing. On June 15, 2016, the Superintendent

referred the matter t o DOAH to conduct the requested hearing.

The undersigned conducted the hearing on September 7 and 8 , 2016.

The parties entered into a Joint Pre - h earing Stipulation

that established certain facts. At the final hearing, the

Superintendent presented the tes timony of Russell Barrs,

Andrew Brown, N.M., Edward Mathews, Angela Cruzado - Medina, C.P.,

and S.S. (Initials are used to avoid disclosing the identity of

minors.) SuperintendentÓs Exhibits 1 through 8 and 11 through 15

were admitted into evidence.

Mr. Torres presented testimony from S.A., Jerriel Filler,

L.M., Z.M., Christopher Riley, Samuel Pabon, Jr., and himself.

Mr. TorresÓ Exhibits 1 through 6 were admitted into evidence.

At the conclusion of the hearing, the parties agreed to file

proposed recommended orders within ten days of filing the

T ranscript. The parties timely filed proposed recommended

orders. They have been considered in the preparation of this

Recommended O rder.

FINDING S OF FACT

1. The Superintendent, on behalf of the School Bo ard of Lee

County (Board) , is responsible for hiring, overseeing, and

terminating, all employees in the school district.

2. At all times material to this case, the Board employed

Mr. Torres as a security specialist at East Lee County High

School (East Le e). Mr. Torres also sometimes served as an

assistant coach and/or substitute athletic trainer.

3. Mr. Torres has worked for the Board since August 5,

2011. For the 2011 through 2015 school years Mr. TorresÓ

received a final Performance Evaluation with a score of

ÐEffectiveÑ in all areas assessed. The "Manager Comments" on

Mr. Torres' Final Performance Evaluations consisted of the

following: "Mr. Torres is an integral part of the MLE [Mirror

Lakes Elementar y] team. He has been a great addition to our

staff [2014 - 2015 Evaluation] Ñ ; "Mr. Torres is a very valuable

asset and is well respected and supported as an integral part of

the MLE team [2013 - 2014 Evaluation]" ; "Orlando performs various

duties at East: se curity and coaching. He has done a good job

with both. Orlando was accepting of taking on the night security

position until a candidate was hired [2012 - 2013 Evaluation]" ; and

"Orlando is a team player and is always willing to go above and

beyond to help staff and students [2011 - 2012 Evaluation]."

4. Mr. Torres is a member of SPALC and was a member during

all periods relevant to this matter.

5 . On February 4, 2016, the BoardÓs Department of

Professional Standards and Equity (PS& E) received reports that on

several occasions Mr. Torres made inappropriate comments and

sexual remarks in the presence of or to female high school

students. The comments included suggestions that Mr. Torres was

interested in sex with the students. The c omments caused the

students extreme discomfort and embarrassment and created an

inhospitable learning environment. The Board investigated. The

information it collected caused the Board to terminate

Mr. TorresÓ employment.

6 . PS&E Coordinator, Andy B rown, conducted an investigation

that included interviews of several students and of Mr. Torres.

When Mr. Torres m et Mr. Brown for his interview, Mr. Torres did

not know the reason for the interview. Mr. Brown advised

Mr. Torres that he was the subject of an investigation and asked

him if he knew what it was about. Mr. Torres said: ÐWhen I meet

with a female, I always have another female present.Ñ This was

not true. Mr. TorresÓ spontaneous and dishonest statement in

response to simply being asked if he knew what the investigation

was about is persuasive evidence that he had improper

conversations with female students and is a contributing factor

to concluding that his testimony denying the charges is not

cred i ble.

7 . In November and December of 2015 , and January 2016 ,

Mr. Torres made several sexually charged, inappropriate comments

to students. Five of the incidents involved N.M. , who was an

eleventh grade student at the time.

8. N.M.Ós mother worked at the school. Consequently , N. M.

stayed at s chool after classes until her mother left work.

N.M.Ós mother arranged for N.M. to assist Mr. Torres in his

training tasks after school. This is how she met Mr. Torres.

The arrangement lasted about a week. Aroun d November 2015,

Mr. Torres gave N.M. a Ðhigh - five.Ñ He prolonged the contact by

grabbing her hand and intertwining his fingers with hers. In a

separate incident, while giving N.M. a Ð bandaid Ñ for a scratch,

Mr. Torres asked her if she would ever get involved with a

married man. She said no a nd walked away .

9. On another occasion, N. M. encountered Mr. Torres whil e

she was walking to lunch. N. M. was wearing what she described as

a Ðburgundy semi - see - throughÑ shirt. Mr. Torres told her to

cover up her ÐgoodiesÑ or her Ðgirls , Ñ referring to her breasts,

so nobody else could see them. N. M.Ós testimony used the word

ÐgirlsÑ w hile her statement in February 2016 said Ðgoodies.Ñ

This minor discrepancy is understandable given the passage of

time and the stresses of an interview and testimony.

10 . On yet another occasion, Mr. Torr es remarked in

Spanish, when N. M. bent down, ÐI like ass.Ñ

11. Mr. Torres spoke to N. M. after she had been called to

the school office to provide a statement about a conflict that

Mr. Torres had with a nother student. When he learned the purpose

of the request for a statement from N.M. , Mr. Torres said, ÐI

thought I was gonna get in trouble for flirting with you; thank

g od we didnÓt take it to second base.Ñ

12. In early February, N.M. was walking with her then -

friend S. S., when Mr. Torres exited a room and saw them. He said

Ðyou look delic . . ., beautiful,Ñ to N.M., shifting from

ÐdeliciousÑ to ÐbeautifulÑ when he noticed S.S. Mr. Torres also

made a comment about wishing N.M. was 18.

13 . Another Security Specialist, Russel l Barrs, who N.M.

considered a friend, overheard bits of a conversation between

N.M. and S.S. ab out the encounter. He asked N. M. about it. She

replied with generalities

14 . A day or two later N.M. met with Mr. Barrs and provi ded

complete information about Mr. TorresÓ comments to her.

Mr. Barrs reported this to Assistant Principal Edward Matthews.

Mr. Matthews launched the investigation.

15 . It is noteworthy that S.S., whose friendship with N. M.

ended, still tes tified to the same events as N. M. did. The two

had a falling out sometime in 2016. The testimony of S.S. was

not a matter of loyal support for a friend. In fact , the tone

and body language of both students gave the distinct impression

that the end of the friendsh ip was not pleasant.

16 . N. M.Ós m other had just starte d working at the school.

N. M. did not immediately report Mr. TorresÓ advances to her

m other or other adults. When she did report them , her initial

statements were incomplete and vague. She just told her m other

she was not comfortable being in the room with Mr. Torres. She

also told her m other t hat Mr. Torres Ðsays things.Ñ Later , after

speaking to Mr. Barrs, N.M. provided her mother a complete

description of the comments.

17 . After classes , Mr. Torres spent a good deal of time in

the training room where first aid supplies and ice are stored for

student - athletes. The training room was divided into two smaller

rooms separated by a door that was usually shut. One room

contained the ice machin e, other equipment, and supplies. The

other part of the room served as an office for Mr. Torres.

Students, including N.M. and C. P., assisted or visited with

Mr. Torres in the training room at times.

18 . C. P. was a female student who served as one of th e

managers for the girlsÓ basketball team. Once while observing

her prepare an ice pack by sucking air out of it, Mr. Torres said

words to the effect of Ðlik e how you suck a boyÓs dick.Ñ

19 . C. P. was a nin th grader at the time. Mr. Torres also

told her that he would like to marry her when she turned 18.

Another time, Mr. Torres t ried to hug C.P. Mr. Torres also told

C. P. that they should not talk in the hall because the security

video cameras may record them.

20 . Another time, after ove r hearing a discussion in Spanish

by several female students about sexual activity, Mr. Tor res told

C. P. that if he ever had sex with her he would break her.

21 . Two or three times Mr. Torres told C. P. that she was

beautiful and he wanted to marry her af ter she graduated.

22 . The comments made C.P. extremely uncomfortable and

unsure of w hat to do. She was scared. S he quit her position as

manager to avoid contact with Mr. Torres.

23 . Like N.M., C. P. was slow to report the comments to an

adult. When sh e first told her step - mother she described

Mr. TorresÓ comments as coming from a substitute teacher. C. P.

was scared and did not want to get involved. When she did, the

details understandably came out in bits and pieces.

24 . Mr. Torres Ó improp er fami liarity with students N.M. and

C. P. and his sexually charged comments were frequent and varied.

They were improper and detrimental to the emotional and mental

health of the students.

25 . The crux of Mr. TorresÓ defense is that none of the

testimony about his actions is true. His testimony is not as

credible as that of the students who testified to his offenses.

One reason, mentioned earlier, is Mr. TorresÓ spontaneous

statement when Mr. Brown met him for the interview that he was

never alone with a fema le. It manifests guilt and anxiousness

that would not be present without his being aware of his improper

behavior .

26 . Another reason is that the testimony of the students is

sufficiently consistent to provide credibility. And N.M., C.P.,

and S.S. all made reports within a few months of Mr. TorresÓ

comments. A third reason is that N.M.Ós testimony was supported

by S.S. at hearing even though their earlier friendship had

ended. A f ourt h reason is that there is no evidence of a motive

for N.M., S.S., an d C.P to fabricate their reports. For the time

period when Mr. Torres made the comment to C.P. about Ðbreaking

her,Ñ several students offered differing testimony about who was

in the room when and whether Mr. Torres was giving a student

instruc t ion on a trumpet. This testimony is not sufficient to

impeach the credibility of N.M. and C.P. Those were not the

students to whom the offending remarks were made. The details of

that day would not have been noteworthy to them at the time.

Similarly, gi ven the nature of Mr. TorresÓ comments, the details

of exactly who was present when would have been secondary to N.M.

and C.P.

27 . Finally , Mr. Torres made one particularly transparent

and deliberate effort to manipulate the truth during

cross - examinatio n that undermines relying on Mr. TorresÓ

testimony. Early in the hearing , in Mr. Torres Ó presen ce , the

Board attempted to enter evidence that during prior employment as

a detention officer with the Sher iff of Lee County , Mr. Torres

reacted to teasing by o ther officers by drawing his service

pistol. The objection to the evidence was sustained.

28 . Later Mr. Torres testified that the testimony against

him was not credible because he would never take such risks at a

school where his wife was also employe d , his children were

students, and N.M.Ós mother was employed. This testimony opened

the door to the pistol drawing incident as evidence of Mr. Torr es

taking risky actions at work .

29 . The exchange about the incident, starting a t page 329

of Volume II of the T ranscript, follows:

Q: But you engaged in risky behavior in

your two law enforcement jobs prior, did you

not?

A: I donÓt consider that risky behavior.

Q: Well, you donÓt consider pulling your

service revolver as risky behavior?

[objection and ruling]

A: I have never carried a revolver.

Q: Your service weapon, sir?

ALJ: You said you never carried a revolver.

Have you ever carried a pistol?

A: Yes sir.

ALJ: Next question.

Q: Would you consider pulling your service

pistol in an inappropriate manner risky

behavior, sir?

A: Yes, sir.

30 . Mr. Torres testified with full knowledge from the

earlier attempt to introduce evidence of the incident to what the

question referred. His answer was hair - splitting at best and

demonstrated a willingness to shade, if not evade, the truth that

significantly undermines his credibility.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

Board Policy 1.16(6)(c); section s 1012.40(2)(c), 120.569, and

120.57, Florida Statutes; and the contract between the Board and

DOAH.

32 . The Board must prove its charges by a preponderance of

the evidence. § 120.57(1)(j), Fla. Stat.; McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476 ( Fla. 2d DCA 1996).

"Preponderance of evidence is defined as evidence 'which as a

whole shows that the fact sought to be proved is more probable

than not.' State v. Edwards , 536 So . 2d 288, 292 n.3 (Fla. 1st

DCA 1988)." Dufour v. State , 69 So. 3d 235, 252 (Fla. 2011); see

also Escambia Cnty. Elec. Light & Power Co. v. Sutherland , 61

Fla. 167, 193; 55 So. 83, 92 (1911).

33 . As a security specialist, Mr. Torres is an "educational

support employee," as defined by section 1012.40(1)(a). T he

SPLAC bargaining agreement applies to his employment.

§ 1012.40(2)(b), Fla. Stat. Section 7.10 of the agreement

provides that disciplinary actions against educational support

personnel may be taken only for Ðjust cause.Ñ It does not define

Ðjust cau se .Ñ

3 4 . The Board uses a statutory definition of just cause for

discipline of instructional staff in disciplining educational

support personnel. The definition provides: ÐJust cause

includes . . . the following instances, as defined by rule of the

State Board of Education: immorality, misconduct in office, . .

. .Ñ £ 1012.33(1)(a), Fla. Stat.

35 . Sections 1012.22(1)(f) and 1012.40(2)(c) give the Board

authority to terminate and/or suspend non - instructional personnel

without pay and benefits.

36 . The School Board may terminate non - instructional

employees for "reasons stated in the collective bargaining

agreement or in district school board rules in cases where a

collective bargaining agreement does not exist."

§ 1012.40(2)(b), Fla. Stat. The collective bargaining agreement

states that discipline shall be reasonably related to the

seriousness of the offense and the employeeÓs record.

37 . The Complaint asserts six charges against Mr. Torres .

The first is that Mr. Torres's behavior is misconduct in office

and justifies termination under the provisions of section

1012.33(1)(a). That section applies only to instructional staff,

supervisors, and school principals. The School Board did not

pro ve that Mr. Torres was instructional staff , a supervisor, or a

principal . It proved that he was an educational support

employee. § 1012.40(1)(a), Fla. Stat. The Board failed to prove

its first charge.

38 . The second is that Mr. Torres violated Board

Policy 5.02. On its face, the policy directs the school d istrict

to establish high standards. It does not impose an obligation

upon the employees of the s chool d istrict. A final order of the

School Board has determined that Policy 5.02 sets forth genera l

aspirational standards or goals and is too vague to put employees

on notice of a standard that they must meet. Lee Cnty. Sch. Bd.

v. Rice , Case No. 13 - 1676 (Fla. DOAH Dec. 20, 2013; Lee Cnty.

Sch. Bd. Jan. 28, 2014). Policy 5.02 cannot be the basis for a

finding of misconduct in office. The Board has not proven this

charge.

39 . The third charge is that Mr. Torres violated

Policy 5.03. This policy, titled ÐGeneral Requirements for

Appointment or Employment , Ñ establishes Ðgeneral requirements for

appo intment or employment.Ñ The qualifications include a

requirement of good moral character. Policy 5.03(2)(a). What

constitutes "good moral character" is a question of fact to be

determined by the trier of fact. Palamara v. Dep't of Bus. &

Prof'l Reg., D iv. of Fla. Land Sales, Condos. & Mobile Homes , 855

So. 2d 706 (Fla. 4th DCA 2003).

40 . Florida Administrative Code Rule 6A - 5.056(1) applies to

actions to dismiss school personnel for just cause under section

1012.33. The rule defines immorality as "co nduct that is

inconsistent with the standards of public conscience and good

morals. It is conduct that brings the individual concerned or

the education profession into public disgrace or disrespect and

impairs the individual's service in the community." Mr. TorresÓ

sexually charged comments to the minor female students are

inconsistent with Ðstandards of public conscience and good

morals.Ñ See generally , § 794.05, Fla. Stat. (second degree

felony for person over 24 years of age to engage in sexual

activi ty with a person age 16 or 17 years of age); § 800.04(4),

Fla. Stat. (second degree felony for a person of any age to

engage in sexual activity with a person 12 years of age or older

but less than 16 years of age) as indicator s of the enhanced

standards of public conscience and good morals in matters of sex

and minors , although there has been no charge that Mr. Torres

engaged in sexual activity . The Board proved a violation of

Policy 5.03.

41 . The fourth charge is that Mr. Torres violated

Policy 5.29. T he policy establishes the procedures to be

Ðfollowed for complaints relating to employees: . . . .Ñ

Subsection (1) of the policy states that "all employees are

expected to exemplify conduct that is lawful and professional and

contributes to a positive lea rnin g environment for students."

Only subsection (2) of this policy imposes an obligation on an

employee to act and provides for discipline if the employee does

not act. That section requires reporting of serious violations

of policies, rules or statutes to an employee's supervisor. It

does not apply here. Lee County School Board , Case No. 15 - 487

(Fla. DOAH August 25, 2015; Lee Cnty. Sch. Bd. October 20, 2015).

The fourth charge does not articulate, and the evidence does not

prove, an offense for which Mr. Torres may be disciplined.

42 . The fifth charge is that Mr. Torres violated

Policy 5.30. Titled ÐComplaint Procedures for Sexual Harassment

by Employees, the policy sets forth Ðprocedures for sexual

harassment complaints.Ñ It first defines sexual harassment and

then establishes procedures for reporting and investigating

sexual harassment. Policy 5.30 does not create a disciplinary

offense relevant in this proceeding. The fifth charge does not

articulate, and the evidence does not prove, an offen se for which

Mr. Torres may be disciplined.

43 . The sixth charge asserts that Mr. Torres vio lated a

requirement created by t he SPALC Contract. P aragraph 7.12 of

Article 7 states:

WORK PLACE CIVILITY: Employees shall not

engage in speech, conduct, behavior (verbal

or nonverbal), or commit any act of any type

which is reasonably interpreted as abusive,

profane, intolerant, menacing, intimidating,

threatening, or harassing against an y person

in the workplace. Bargaining unit employees

may address alleged violations of this

provision through the grievance procedures

as outlined in Article 5 of this agreement.

The resolution of a complaint under this

provision may result in the involu ntary,

temporary transfer of an employee or

employees pursuant to provision 7.04 of this

agreement. Such transfer may become

permanent when deemed necessary by the

Superintendent or the SuperintendentÓs

designee.

44 . The plain language of this provision creates a

protection for employees from the conduct of other employees.

The reference to paragraph 7.04, which governs involuntary

transfer of an employee to another school or site, confirms this.

Mr. Torres conduct was toward studen ts, not other employ ees.

Paragraph 7.12 does not create a disciplinary offense relevant in

this proceeding. The sixth charge does not articulate, and the

evidence does not prove, an offense for which Mr. Torres may be

disciplined.

45 . The Board proved Mr. Torres repeatedly violated Board

Policy 5.03. The violations were deliberate and egregious. They

betray the core mission of a school, caring for students, and the

central purpose of Mr. TorresÓs position, providing security and

safety for students. The violations were s o serious that

discharge from employment is an appropriate discipline , despite

Mr. TorresÓ history of favorable evaluations .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order finding just cause to terminate the employment of

Respondent, Orlando Torres, and dismissing him from his position

with the Lee County School District.

DONE AND ENTERED this 31st day of October , 2016 , in

Tallahassee, Leon County, Flori da.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October , 2016 .

ENDNOTES

1 / Unless otherwise noted, all statutory references are to the

201 6 edition of the Florida Statutes.

COPIES FURNISHED:

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

(eServed)

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Gregory Adkins, Superintendent

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

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.