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Mootry v. Bethune-Cookman University, Inc.

Florida Court of Appeals, Fifth District

August 2, 2019

ALDONIA MOOTRY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUSSELL MOOTRY, JR., Appellant/Cross-Appellee,
v.
BETHUNE-COOKMAN UNIVERSITY, INC., AND TRUDIE KIBBE REED, Appellees/Cross-Appellants.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Volusia County, Christopher A. France, Judge.

          David A. Vukelja and Jarett A. de Paula, of David A. Vukelja, P.A., Ormond Beach, for Appellant/Cross-Appellee.

          Scott A. Cole and Alexandra Valdes, of Cole, Scott & Kissane, P.A., Miami, for Appellees/Cross-Appellants.

          EVANDER, C.J.

         Aldonia Mootry, as personal representative of the Estate of Russell Mootry, Jr. ("Mootry"), appeals a final judgment entered in favor of Bethune-Cookman University, Inc. ("BCU") following a jury's determination that BCU did not breach an employment contract. Mootry raises several issues on appeal, one of which compels reversal. The trial court erred in permitting BCU's counsel to make a highly improper argument during his closing. Accordingly, we reverse and remand for a new trial.

         Most of the relevant background facts of this case were set forth in Mootry v. Bethune-Cookman University, Inc. (Mootry I), 186 So.3d 15 (Fla. 5th DCA 2016).

Mootry began teaching at BCU in 1977 and except for a brief period from 1979-1982, was continuously employed there until 2009 when his employment was terminated and this litigation ensued. In 1995, Mootry was awarded tenure and in 2005, he was appointed Dean of the School of Social Sciences. As a tenured professor, Mootry and BCU entered into annual contracts each year for his employment. Pertinent to this appeal, Mootry's employment contract provides that BCU has "the power and authority to terminate this contract at any time for malfeasance, inefficiency, neglect of duty, or contumacious conduct."
BCU also had a faculty handbook, which provided that a tenured faculty member may be terminated for cause and listed numerous grounds that constituted cause, including moral turpitude and violation of BCU's policies regarding sexual harassment. The handbook explained the process that occurs following a complaint of sexual harassment, including the requirement that BCU promptly establish a committee to investigate the complaint. The faculty handbook also recognized that BCU would uphold "[t]he rights prescribed by the American Association of University Professors ("AAUP") when not in conflict with the policies of BCU." The AAUP manual contained provisions pertaining to charges of sexual harassment that included the right to confront an accuser, an opportunity to cross-examine an accuser and witnesses, and the right to have specific charges to respond to and formulate a defense.
In May 2009, Reed [the University's President] hired Bo Brewer ("Brewer") to conduct interviews related to staffing for the Academic Affairs Department at BCU. During the course of conducting interviews with BCU faculty members, Brewer was advised of alleged widespread sexual harassment of students by Mootry and other professors in the Department of Social Sciences. Brewer advised Reed of this possible problem and Reed, rather than appoint a committee to investigate as required by the BCU handbook, directed Brewer to investigate these allegations of sexual harassment. In conducting his investigation, Brewer promised anonymity to those individuals with whom he spoke. Brewer would thereafter periodically meet with Reed and when discussing his investigation, intentionally withheld from Reed the names of the individuals making the allegations of sexual harassment. Moreover, Brewer destroyed his notes that identified the individuals he interviewed in order to ensure the previously promised confidentiality.
On May 15, 2009, Mootry received written notice from Reed that he had been suspended from his employment without pay, based upon allegations of improper conduct with female students. In this notice, Mootry was advised of the ongoing investigation and was ordered to meet with Brewer to discuss the investigation. Mootry met with Brewer, denied the allegations of sexual harassment, and inquired of Brewer the names of the individuals making the accusations against him. Brewer did not disclose to Mootry the names of these students.
At the conclusion of his investigation, Brewer prepared a written report summarizing his findings and presented the report to Reed. None of the individuals making the allegations of sexual harassment were named in the report. Brewer's report also summarized his interviews with members of the BCU faculty. The report does not indicate that any of the interviewed faculty members actually witnessed the alleged sexual harassment by Mootry.
On May 29, 2009, after Reed received Brewer's report, BCU terminated Mootry's employment and tenure "for cause." The termination letter specifically provided that Mootry was terminated for "moral turpitude, violation of the university's policies regarding sexual harassment, violation of ethical code, conduct in violation of commonly accepted standards of morality, and failure to cooperate within the bounds of accepted standards." Mootry administratively appealed his termination with BCU. During the appeal process, Mootry claimed that he had never been provided with Brewer's report and had no information ...

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