ALDONIA MOOTRY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUSSELL MOOTRY, JR., Appellant/Cross-Appellee,
BETHUNE-COOKMAN UNIVERSITY, INC., AND TRUDIE KIBBE REED, Appellees/Cross-Appellants.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Christopher A.
A. Vukelja and Jarett A. de Paula, of David A. Vukelja, P.A.,
Ormond Beach, for Appellant/Cross-Appellee.
A. Cole and Alexandra Valdes, of Cole, Scott & Kissane,
P.A., Miami, for Appellees/Cross-Appellants.
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.
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
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
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