STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHAEL HUNTER, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2891
) STATE OF FLORIDA, DEPARTMENT ) OF CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing furnished the parties herein on September 10, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Chattahoochee, Florida on January 3, 1985. The issue for consideration at this hearing was whether Petitioner was unlawfully discriminated against because of his race when he was discharged from his employment as a corrections officer by Respondent.
APPEARANCES
For the Petitioner: Ben R. Patterson, Esquire
1215 Thomasville Road
Tallahassee, Florida 32315
For the Respondent: Preston T. Everett, Esquire
Assistant General Counsel Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301 BACKGROUND INFORMATION
Petitioner, Michael J. Hunter, was discharged from employment as a correctional officer with the Florida Department of Corrections on July 7, 1983. A charge of discrimination was filed with the Florida Commission of Human Relations on November 3, 1983 and after investigation, on June 26, 1984, Donald
Griffin, Executive Director of that agency signed a Determination of No Cause. Petitioner was notified of this determination on June 29, 1984, and on July 31, 1984, he filed an amended Petition for Relief From an Unlawful Employment Practice against both the Respondent and Mr. Griffin. This Petition was transmitted to the Division of Administrative Hearings on August 10, 1984 for a formal hearing. Thereafter, on August 22, 1984, Mr. Griffin moved to drop from the proceedings and this motion was granted by the undersigned on September 5, 1984.
At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Young John Allen, a correctional officer at the Apalachee Correctional Institute; Al Cook,
Superintendent of that facility; and Ralph Kiessig, Personnel Director for the Department of Corrections. Respondent also introduced Respondent's Exhibit A. The undersigned took official recognition of Section 944.25, Florida Statutes, 1983.
FINDINGS OF FACT
The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he
was subject to no disciplinary action during the entire period he worked for the Respondent.
His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months.
During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment.
On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go.
It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant.
In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins.
He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part.
According to Hunter, when Hyatt came in, Watkins jumped up and moved
off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close.
Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited.
At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave.
Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times.
Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident.
The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt.
Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections
officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment.
The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for
9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black.
After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins.
These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination.
Another factor to consider is the demeanor of the witnesses while on
the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.
Section 760.10(1)(a), Florida Statutes, (1983), makes it an unlawful employment practice for an employer:
To discharge..., or otherwise to discriminate against any individual.
...because of such individual's race. "
Therefore, in employment discrimination cases, such as here, where an individual alleges he was subject to disparate treat- ment because of his race, he has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If he
does so, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the actions taken. Texas Dept. of Commonwealth Affairs v. Burdine, 101 s.ct. 1089 (1981)
Here the evidence reveals that Petitioner and the inmate in question were involved in an altercation in which, in its very best light, Petitioner's conduct was less than it should be. The evidence presented resulted in a finding that Petitioner struck an inmate without justification. This action supports the termination of his employment under Section 944.35 Florida Statutes (1983) which provides:
"It is unlawful for any corporal punish- ment...to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately. "
Petitioner failed to present any evidence, save his own denials (this issue was resolved against him) to show that his termination was the result of anything other than his own misconduct. No racial discrimination has been shown and in fact the evidence presented demonstrates a quite even handed approach to the discharge of abusive employees.
Accordingly, it is concluded that Petitioner was not discharged because of his race, but because his performance of his duties, otherwise satisfactory, but herein defective in that he physically assaulted an inmate, justified it.
Based on the foregoing, therefore, it is
RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied.
Recommended in Tallahassee, Florida, this 19th day of February, 1985.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985.
COPIES FURNISHED:
Preston T. Everett, Esquire Asst. General Counsel
Dept. of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32315
Dana Baird, Esquire
325 John Knox Road Suite 240, Bldg. F
Tallahassee, Florida 32303
Ben R. Patterson, Esquire
O. Box 4289 Tallahassee, Florida 32315
Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd.
Tallahassee, Florida 32301
================================================================= AGENCY REMAND
=================================================================
STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS
MICHAEL HUNTER,
EEOC Case No. 046842030
Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891
vs. FCHR Order No. 86-015
STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS,
Respondent.
/
ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL
EMPLOYMENT PRACTICE
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner John J. Sulik, Panel Chairperson,
Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce.
APPEARANCES For Petitioner Michael Hunter:
Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325
For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire
Assistant General Counsel
Florida Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
Preliminary Matters
Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black).
In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred.
On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985.
Petitioner filed exceptions to the Recommended Order. Respondent filed a response.
Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record
2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition.
Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that
confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black.
Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless.
Analysis and Discussion
The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of
the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white.
We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual.
Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell
Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must
be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext.
The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads:
Corporal punishment prohibited; penalty.
It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall
not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for
whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector.
Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained.
Remand
Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order.
It is so ORDERED.
DATED this 24th day of September, 1986.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce.
Commissioner John J. Sulik, Panel Chairperson, dissenting.
I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal.
FILED this 30th day of September, 1986, in Tallahassee, Florida.
Betsy Howard,
Clerk of the Commission
ENDNOTES
1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1985), and all rule references are to Florida Administrative Code.
2/ Respondent objected to Petitioner's Supplementation of the Evidentiary Hearing being considered as part of the official record. The record is clear, however, that the Hearing Officer authorized Petitioner to submit posthearing evidentiary materials based upon Respondent's failure to produce all discovery requests prior to the date of the formal proceeding being conducted and
Petitioner timely filed such materials. The supplemental materials included evidence that the Hearing Officer had previously deemed to be outside the scope of the proceeding, specifically supplemental materials, number 5. The supplemental materials were not addressed in the body of the Recommended Order.
3/ In his exceptions, Petitioner compares himself to two white correctional officers, Foran and Mayo, who were alleged to have been engaged in behavior similar to that with which Petitioner was terminated. Based on the contents of the supplemental materials, Officer Foran's offense does not appear comparable to Petitioner's offense, whereas Officer Mayo's offense appears more egregious than Petitioner's offense. Officer Mayo, however, received more lenient punishment than Petitioner received. Officer Mayo was employed at Dade Correctional Institution at the time of the offense.
COPIES FURNISHED:
Ben R. Patterson, Attorney for Petitioner (C.M.#P325578695) Ernest L. Reddick, Attorney for Respondent (C.M.#P325578696) Dana Baird, Legal Advisor for Commission Panel
Paulette H. Simms, Administrator of Employment Investigations Arnold H. Pollock, DOAH Hearing Officer
================================================================= SECOND RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHAEL HUNTER, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2891
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Order Setting Hearing in this case dated November 14, 1986, which was furnished to both parties by the undersigned, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida, on January 5, 1987. The purpose of the hearing was to allow the Petitioner to present additional evidence not already presented in previous proceedings in this matter on the issue of whether Petitioner was unlawfully discriminated against in being discharged on the basis of his race.
APPEARANCES
For Petitioner: Ben R. Patterson, Esquire
1215 Thomasville Road Post Office Box 4289
Tallahassee, Florida 32315
For Respondent: Ernest L. Reddick, Esquire
Assistant General Counsel Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301 BACKGROUND INFORMATION
On July 31, 1984, the Petitioner herein, Michael Hunter, filed a Petition for Relief From an Unlawful Employment Practice with the Florida Commission on Human Relations (CHR) which, after investigation, was referred to the Division of Administrative Hearings for the conduct of a formal hearing. This hearing was held before the undersigned on January 3, 1985, in Chattahoochee, Florida.
During the initial formal hearing on this matter, the undersigned limited the scope of the proceeding to incidents which had occurred at the Respondent's Apalachee Correctional Institution (ACI) where Petitioner was employed at the time he was terminated. Petitioner desired to introduce evidence that white correctional officers at other institutions operated by Respondent throughout the state had committed offenses similar to that for which Petitioner was discharged and were not similarly punished.
Subsequent to the original hearing herein, Petitioner offered matters to supplement the official record, these matters being evidence of other cases of employee abuse of prisoners and the action or lack thereof taken by Respondent as a result.
Respondent objected to Petitioner's supplementation of the evidentiary hearing being a part of the official record. Petitioner had indicated a desire to submit post-hearing evidentiary matters in this regard because Respondent had failed to produce, prior to the hearing, the evidence in question. These supplemental materials, presented as a result of the Hearing Officer's direction to Respondent to make the matters available to Petitioner, included the questioned evidence of employee misconduct and the resultant action thereon referenced above. Though these matters were not addressed in the body of the Recommended Order by virtue of the fact that the Hearing Officer had already indicated he considered them irrelevant, they were, nonetheless, attached thereto and available for the CHR to consider in its independent evaluation of the evidence prior to Final Order.
The CHR chose not to enter a Final Order, however, and determined that the undersigned's failure to consider this supplemental material was in error. As a result, on September 30, 1986, the CHR remanded the matter to the undersigned directing, by a two to one vote, that the Hearing Officer conduct further evidentiary proceedings consistent with the Order of Remand. There was one dissenting vote by a Commissioner who agreed with the Hearing Officer's limitation of the evidentiary inquiry to ACI.
The Order of Remand in essence concluded that Petitioner should be afforded the opportunity to present evidence that white employees violated Section 944.32, Florida Statutes (1983), which prohibits corporal punishment of prisoners and were nonetheless retained.
In the Order setting the matter for hearing, the undersigned determined that there would be no reconsideration of the Petitioner's offense which was adjudicated at the prior formal hearing, nor would counsel for Petitioner be permitted to perfect or elaborate on those incidents submitted by him as supplemental evidence as discussed above.
At the hearing, Petitioner presented the testimony of Jerry Thomas Wilson, a Corrections Officer I, at API (West Unit) and introduced Petitioner's Exhibits 1a, 2a, and 3a. Respondent presented no evidence at all.
Subsequent to the hearing, both parties submitted proposed Findings of Fact which are addressed in the appendix hereto.
FINDINGS OF FACT
At all times in issue herein, the Petitioner, Michael Hunter, was employed at ACI in Sneads, Florida, as a Corrections Officer.
After several weeks training upon being hired, he served as a Corrections Officer at that institution until July 7, 1983, when he was disciplined for an alleged violation of the Florida statute prohibiting corporal punishment of prisoners.
Petitioner alleged that Jerry Wilson, also a Corrections Officer at ACI, was involved in an assault on a prisoner in violation of the same statute but was not disciplined because he is white. Mr. Wilson's testimony indicated to the contrary that he had worked as a Corrections Officer at API since June 1981, though at the East Unit until September 1986.
During that month he was involved in the use of force with an inmate (Johnny Hayes). On the day in question, he had been relieved of duty at the end of his duty day but was called back to a unit where he found Hayes in the custody of three guards. At this point, Hayes was unruly and wild, cursing, threatening, raising his hand to the guards, and spitting. The guards tried to calm him down but he would not respond and was, as a result, restrained.
At this point the guards, of whom Wilson was one, were directed by their supervising lieutenant to strip Hayes and in doing so, Wilson tore the T- shirt Hayes was wearing, which had already been torn by other inmates in a prior altercation, from his body. The more substantial neck of the shirt resisted tearing and pulled on Hayes' neck. As Hayes was placed in the cell, he called out to Wilson that he, the prisoner, was glad of what had happened to Wilson's son. At this point, Wilson, whose son had been run over and killed by a school bus two months previously, reacted and started to go back into the cell with Hayes. He did not do so, however, and he denies either hitting or cutting Hayes as the inmate accused. In fact, Wilson did not have a knife with him at the time and took no physical action against Hayes though he admits to having yelled at him.
The report of force used, prepared by Wilson after this incident, as corroborated by the investigating officer and approved by the installation superintendent and the regional director, basically sustains and supports
Wilson's testimony. The superintendent's endorsement reflects that from a review of the report and subsequent investigation, it appeared that Wilson used good judgement in the use of force and that the action was in compliance with Department of Corrections' rules. The investigating officer concluded in his report that it appeared Hayes' allegations against Wilson lacked credence and that any force used by the officers (not only Wilson) was necessitated by Hayes' disruptive actions and defiance of lawful orders. This incident is totally different from, and cannot reasonably be compared with, that involving Petitioner.
Petitioner also introduced certain statistics taken from a Stipulation entered into by the Department in a different legal action which refers to the years 1976 through 1978 and a handwritten formula which, Petitioner contends, clearly demonstrates that the number of disciplinary actions against black employees within the Department of Corrections is far higher than that for white employees.
The statistical information contained in Petitioner's Exhibit 1a, relating to a time anywhere from five to seven years prior to the incident in question has very little probative value regarding the issue of possible discriminatory practices by the Department in 1903 and 1984. Since the base material is considered of no probative value, the formula applied to it would, as well, appear to have inconsequential probative value.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In cases involving allegations of racial discrimination, the burden is on the Petitioner to establish a prima facie case supporting his allegations with evidence adequate to raise an inference that the prejudicial actions took place. Petitioner may do this by showing that he belongs to a racial minority and that the alleged misconduct of the Respondent is based on discriminatory practice related to Petitioner's racial minority status. Once he has done this, Respondent must then produce evidence to establish a legitimate, nondiscriminatory reason for the difference in treatment between that rendered the Petitioner and that rendered persons of a different race. If the Respondent fails to do so, then Petitioner would prevail.
Going back to the evidence which was used by Petitioner to supplement the record in the original hearing held herein, which the undersigned did not consider, this evidence was forwarded along with the transcript of the hearing and the undersigned's Recommended Order to the CHR. That agency, in considering its action, could have considered not only the evidence of record and the undersigned's recommendation, but also the supplemental evidence that was attached to it. Had the CHR chosen to do so, it could have reached its own Findings of Fact so as to conform to its understanding of the evidence. Having done so, it could then have concluded that Petitioner had shown racial discrimination and it could have, on its own evaluation of the evidence, ordered corrective action. It failed to do this and instead, sent the case back to the undersigned for reevaluation of the file and the taking of additional testimony.
The under signed again concludes that the supplemental evidence submitted by Petitioner subsequent to the original hearing is irrelevant to the issues at hand here. Petitioner was discharged on the basis of action which took place at ACI and the discharge action was taken by his supervisor at that
institution. There has been no showing, either by evidence at the original hearing or in the evidence presented by Petitioner at the instant hearing, that any policy, dictate, or other direction by supervisory personnel of the DOC with authority to do so, established any evidence of planned or de facto racial discrimination in the employment treatment of DOC personnel in general and this Petitioner in particular.
The statistics from a time five years prior to the incident involving Respondent here are of no probative value to establish that as of 1983-1984 the personnel policies of DOC were biased or otherwise improperly discriminatory.
Further, far from establishing that disparate treatment was rendered to the Petitioner here as opposed to that rendered Mr. Wilson, the evidence presented by Petitioner clearly shows that Mr. Wilson's activities were not egregious or more inflammatory than those of the Respondent but in fact, less so and in addition, justified. The supplemental review of Mr. Wilson's action clearly demonstrated that they were fitting to the circumstances and consistent with the rules of the Department of Corrections. In no way can this be said to be indicative or probative of any type of improper discrimination against this Petitioner.
Petitioner having failed to carry his burden, Respondent had no duty to present any evidence.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Petitioner's Petition for Relief from an Unlawful Employment Practice be denied.
RECOMMENDED this 24th day of February 1987, at Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-99675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1987.
APPENDIX TO RECOMMENDED ORDER
In Case No. 84-2891
The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
For the Petitioner
1-2. Accepted and incorporated in Findings of Fact 1 and 2.
Rejected as contrary to the weight of the evidence.
Rejected as the statistics are not reasonably timely or related to the practice of the Department of Corrections at the time of the incident involving Petitioner.
Rejected as having no probative value in light of the finding on the probative value of the statistical information.
Accepted as the fact that Respondent submitted no evidence but rejected as to a failure to meet its duty to articulate a nondiscriminatory reason for its treatment of Petitioner.
For the Respondent
Not a finding of fact.
Not a part of the evidence submitted at the hearing in question.
COPIES FURNISHED:
Ben R. Patterson, Esquire 1215 Thomasville Road Post Office Box 4289
Tallahassee, Florida 32315
Ernest L. Reddick, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Blvd.
Tallahassee, Florida 32399-2500
Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
Louis A. Vargas, General Counsel Department of Corrections
1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
| Issue Date | Proceedings |
|---|---|
| Feb. 19, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 29, 1987 | Agency Final Order | |
| Sep. 30, 1986 | Remanded from the Agency | |
| Feb. 19, 1985 | Recommended Order | Evidence fails to support allegation that disciplinary action was based on racial discrimination. |
