vs.
Respondent.
) Case No. 04-1049
A formal hearing was conducted in this case on June 23, 2004, in West Palm Beach, Florida, before Administrative Law Judge Florence Snyder Rivas of the Division of Administrative Hearings.
Searcy Denney Scarola Barhart & Shipley, P.A.
For Respondent: Michael G. Whelan, Esquire
Whelan, DeMaio & Kiszkiel, P.A.
Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992, as amended, the Act or Chapter 760, Florida Statutes.
These proceedings were commenced on October 13, 2003, by Petitioner Harold Gore Murphy III (Murphy or Petitioner) with the filing of a complaint of disability discrimination with the Florida Commission on Human Relations (FCHR) against the Palm Beach County Sheriff's Office (PBSO or Respondent).
More particularly, the complaint stated that Murphy ". . . was denied reasonable accommodations because of [his] disability. After I was diagnosed with PTSD (Post Traumatic Stress Disorder), ADD (Attention Deficit Disorder) and ADHD (Attention Deficient [sic] Hyperactivity Disorder), I made a request for additional help with my work duties. Instead of accommodating me, I was terminated on October 11, 2002. I was told that I was terminated because I was not competent enough to be a police officer."
The Commission issued a "no cause" determination on February 17, 2004. Murphy timely exercised his right to seek an administrative hearing.
The identity of witnesses and exhibits, and attendant stipulations and rulings are contained in the two-volume transcript of the proceedings, which was filed on July 13, 2004. The parties timely submitted Proposed Recommended Orders, which have been carefully considered.
The Palm Beach County Sheriff's Office is a law enforcement agency that employs roughly 3,400 individuals, of whom approximately 1,200 are sworn law enforcement officers and 700 are sworn corrections officers. The remaining employees are civilian or non-sworn.
Murphy was hired as a deputy sheriff by PBSO on October 26, 1992. He was continuously employed in that capacity until his termination on October 11, 2002. For portions of the time he worked for PBSO, Murphy also was employed at a Home Depot store and in his father's towing business.
Murphy’s career at PBSO was the fulfillment of a life dream, one for which he had worked extraordinarily hard. Murphy's father worked in law enforcement, and instilled within his only son a dream "to serve and protect."
Despite his family background, Murphy was not an obvious candidate for a career in police work. Murphy was a marginal student all his life. He failed second grade, and passing any academic subject was a struggle. Yet, he persevered, determined to realize his dream of following his father's footsteps.
Murphy worked long hours on schoolwork, sports, and in the family towing business. He was able to attain a high school diploma by applying himself diligently to his academics and
seeking out extra help. With constant practice and repetition of his class work, Murphy was able to master material well enough to pass necessary courses, but he was not good at transferring knowledge and information to other settings.
Despite his weak academic history, or perhaps because of the perseverance it showed, Florida State University awarded Murphy a partial football scholarship.
In pursuit of his life dream, Murphy chose to major in criminal justice. Again, he experienced academic difficulty.
As he had done in grammar school and high school, Murphy sought out extra tutelage and put in whatever hours it took to complete his degree.
In due course, Murphy applied for and obtained a job at PBSO, having fulfilled all its employment criteria, including being licensed to carry a firearm and having passed a psychological evaluation.
Murphy's first assignment was road patrol. Road patrol in most law enforcement agencies, particularly those in large urban areas such as Palm Beach County, is an entry-level position, and a baptism by fire. Every traffic stop is potentially life threatening. Road patrol officers may be called upon on a moment's notice to provide back up to fellow officers who are under fire. Virtually every interaction with
the public calls for grace and good judgment under stressful circumstances.
The most ordinary of days on road patrol result in a need to generate reports. There are, as Murphy noted, "hundreds of formulas" which deputies must understand so that they can properly document traffic accidents. A working knowledge of Florida Statutes, criminal and civil procedure, and related court rules, is also required.
It soon became apparent that Murphy was unsuited to road patrol. With its incessant demands upon him to quickly access and apply academic training to the infinite variables of street policing, road duty revealed that Murphy was unable to translate his classroom learning to the demands of the job. His supervisors were therefore obliged to spend a disproportionate share of time addressing situations created by Murphy's sub-par performance.
After two years, Murphy was assigned to Palm Beach International Airport (PBIA). Murphy found this position more congenial. Freed of the stress of road patrol and its unceasing paperwork demands, Murphy’s weak academic skills were no longer a constant irritant to his supervisors.
Nonetheless, Murphy's annual job evaluations make clear that in either assignment, his job performance was marginal.
Murphy maintained excellent physical fitness and a professional appearance at all times, but was often rated borderline in areas involving judgment, ability to withstand pressure, and relations with colleagues and the public.
As far back as his 1993-94 evaluation, Murphy's supervisors cited concerns regarding his common sense, and his ability to make sound decisions and to exercise good judgment.
Murphy found it difficult to stay awake when assigned to the midnight shift, a problem that was easily remedied with a schedule change.
Much more problematic was his difficulty in quickly and effectively writing reports. Murphy's deficiencies in report writing were noted on at least three annual evaluations, and PBSO made a good faith effort to assist Murphy in remediating his deficiency by providing him extra report writing training.
Murphy places substantial significance upon an incident which he states occurred in April 1995 when he was on routine road patrol and was one of several deputies asked to respond to a domestic disturbance call. The incident involved unholstering his gun. Based upon Murphy's description of the incident and resulting symptoms years after the fact, doctors diagnosed PTSD.
The 1995 incident was not documented in any PBSO records presented at hearing. The only evidence regarding PTSD is contained in Murphy's description of the event and his reaction to it, which he related to a number of doctors he saw in connection with his pending dispute with PBSO regarding his fitness for duty. Murphy expressed to some of these doctors that the transfer to PBIA was provoked by the 1995 incident, but there is no record or testimony corroborating Murphy's opinion in this regard.
Murphy has always enjoyed his posting at PBIA, but his personnel file reflects that after three years there, his job performance remained well below reasonable expectations. Although he could handle most of the everyday tasks presented to deputies assigned to the airport, he at times appeared confused when called upon to make a decison for which there was no blueprint. He lacked the knowledge of criminal law and procedure, as well as basic airport operation, reasonably expected of a deputy with his experience.
Supervisors gave Murphy credit for a "can-do" attitude and for promptness. However, he had a propensity to blame others or make excuses for his mistakes. It followed that Murphy continued to require a disproportionate share of attention of supervisors, even on routine decisions.
Several years into his career, he continued to struggle with basics, for example, maintaining composure when challenged by members of the public or given constructive feedback by colleagues or supervisors.
In 1998, it was recommended that Murphy be required to re-enter the field training officer ("FTO") program, and spend at least six months on road patrol to provide "much needed experience and the self confidence that is presently lacking."
By the 1998-99 evaluation, supervisors' impatience with Murphy was growing. While acknowledging his ambition and willingness to pursue educational opportunities, the report noted his continued propensity to become aggressive with co- workers and antagonistic to supervisors and "apparent inability to control his temper."
Murphy completed the FTO remedial training recommended the previous year, as well as eight additional courses aimed at improving his performance, and achieved an overall performance evaluation of "average, meeting the basic requirements of most [job] descriptions."
In early 2000, Murphy received a 90-day unsatisfactory performance notice. In-house remedial training was offered, but the tone of the evaluator was decidedly impatient and frustrated. Murphy's supervisors began to document specific instances of their dissatisfaction with his performance. One
example from his 2000 evaluation reads: "After an incident where [Murphy] had taken 21 hours to complete a simple drug arrest, he was placed with an FTO in the airport. These training sessions had little effect on his overall job performance. "
While some improvements were noted in 2001, Murphy was again counseled on common sense, judgment and job knowledge.
Against this background, an incident occurred on January 18, 2002, which would eventually result in Murphy’s termination.
Early that morning, Murphy was off-duty and in a hurry to catch a flight out of PBIA to Washington D.C. via Charlotte. As a result of five years’ experience enforcing airport security protocols, Murphy was well aware that it was impermissible to leave baggage at the skycap station while he parked his car. However, Murphy identified himself as a deputy assigned to the airport and insisted that the skycaps check his baggage for him while he parked.
Inside the airport, Murphy observed a lengthy passenger screening line. Murphy admits to feeling "entitled," in that this would be his first vacation in two years. Determined to make his flight, he formed an intent to cut to the front of the line to pass through the metal detectors and then to his gate.
Murphy made contact with a fellow deputy, David Shoemaker (Shoemaker) who had been assigned to the airport less than six months. Shoemaker told Murphy to come around the metal detector, which he did, chatting briefly with National Guard officers on duty, as well as the "screening people,” all of whom were well known to him from his years of service at PBIA.
At hearing and at all times since the incident, Murphy has attempted to deflect responsibility, saying, ”My intent was to cut in line. My intent was to go through the screening process. However, the deputy sheriff was on duty. I did what I was told, and I walked around the screening area. "
It was Murphy, not Shoemaker, who was the experienced sheriff's deputy in this situation. Murphy was reasonably expected to know, particularly in the post-September 11 environment, that it was inappropriate, and possibly illegal, to seek special treatment based upon his personal acquaintance with security personnel. Members of the general public witnessing this "professional courtesy" could be reasonably expected to be irritated, angry, or even in fear for their safety, inasmuch as Murphy was dressed in civilian clothing; the public had no way of knowing that he was any more "safe" than the wheelchair-bound elderly people and babies who are screened in the interests of passenger safety.
In this instance, one person was sufficiently annoyed or concerned to report the incident to airport officials and to seek an explanation.
By this time, Murphy and his bags were enroute to Charlotte, N.C. At the Charlotte Airport, Murphy and his luggage were briefly detained and searched, and he was thereafter allowed to proceed to his final destination.
At some point while on vacation, Murphy called a person named Gilbert Johnson, whom Murphy identified as a friend of his from the National Guard. According to Murphy, "Gilbert had told me that everybody was telling me [sic] I was going to jail for a federal crime, and I was very scared and very worried. "
There was no evidence to suggest that Murphy was ever in danger of being jailed for a crime, federal or otherwise. However, the poor judgment he exercised in the service of making his plane would, in time, result in credible medical evidence that Murphy could not, at all times relevant, fulfill the requirements for service as a sheriff's deputy, with or without accommodations.
Shortly after the January 18 incident, PBIA officials asked that Murphy be removed from his airport posting, at least until the incident could be investigated. Even before he
returned from vacation, PBSO had decided that Murphy would be reassigned to road patrol.
Upon his return to work, Murphy met with supervisors.
At some point in this meeting, he ceased to participate, instead exercising his right to be represented by counsel. Murphy was informed that he would be suspended with pay pending the outcomes of routine criminal and administrative investigations.
Although the facts surrounding the incident were in all material respects undisputed, it took months for PBSO to conclude its internal affairs investigation, which ended with a recommendation that Murphy receive a two-day suspension for having improperly used his status as a law enforcement officer to gain special privileges not available to the general public. No state or federal agency pursued criminal charges against Murphy. Neither the internal affairs investigation nor criminal investigation(s), if any there were, played any role in Murphy's eventual termination.
Murphy's anxiety about what he perceived as immense threats to his employment and to his liberty persisted and fed on themselves. The delay in completing the internal affairs investigation exacerbated his fears, particularly his baseless belief that he would be sent to jail for having sought and received special treatment at PBIA. Murphy persisted in the
belief that jail was a real possibility, and he was consumed with worry.
Almost as distressing to Murphy was the possibility that he would be returned to road patrol, a job for which Murphy correctly believed he was unsuited.
In the immediate aftermath of the PBIA incident, Murphy's problems, real and imagined, combined to cause him to decompensate. He became physically ill and emotionally distraught to a degree which rendered him unfit for duty. To his credit, Murphy informed his supervisor that he was uncertain of his present ability to adequately back up fellow officers should the need to do so arise.
Concerned for Murphy's well being, a PBSO supervisor sent to his home deputies to check on him, and immediate arrangements were made to have him evaluated by Dr. Raul Diaz (Dr. Diaz).
Dr. Diaz supported Murphy's belief that he was at the time temporarily unfit for duty. Dr. Diaz recommended psychological evaluation by Dr. Myles Cooley ("Dr. Cooley").
At hearing, Murphy stated his belief, but offered no evidence, that officers who are the subject of an internal affairs investigation are granted administrative leave to preserve their full salary and benefits pending the outcome of
the investigation. In this case, PBSO insisted that Murphy take family medical leave beginning on Februry 1, 2002.
By this time, Murphy felt he was able to return to work and sought to persuade PBSO to return him to PBIA. To that end, he cooperated with PBSO's efforts to obtain medical and psychological evaluations.
He also proceeded on a parallel track, seeing medical professionals of his own choosing and cooperating in the testing, evaluation, and medication regimens they recommended.
In February 2002, Murphy's attorney provided PBSO with signed prescription pad notes from two medical doctors, Sanford Kaufman and Kevin Inwood. Dr. Kaufman’s note read, "No psych diagnosis other than reactive stress. Okay to return to work, no restrictions." Dr. Inwood wrote, "Pt. Is fit for duty after today exam not completed."
Neither note indicated the respective doctor's area of specialization, credentials, what tests had been performed on Murphy, what information concerning Murphy had been furnished to them, and from what sources. Standing alone, these doctors' notes did not furnish a factual basis upon which a reasonable person could conclude that Murphy was fit for duty.
Meanwhile, Murphy continued to cooperate in evaluations commissioned by PBSO. Dr. Cooley saw Murphy in March and April 2002, and conducted exhaustive testing,
including evaluations for attention dysfunction, learning disabilities, and other disorders that might affect his job performance.
In speaking with doctors in the course of these evaluations, and in his testimony at hearing, Murphy acknowledged that both before and after being diagnosed with ADD, ADHD, and PTSD, he was fully able to perform the numerous activities of daily living pertinent to a man of his age who has always been active in sports and has held physically demanding jobs. Murphy is unrestricted in his ability to lift, see, hear, breathe, swim, sit, stand, bathe, and dress, all of which are necessary to the performance of active police work, and countless other jobs requiring an individual to be in good physical condition.
At all times material to this case Murphy is qualified to work in construction, having built the home he lives in. He is also licensed to operate any type of vehicle, continues to work in the family towing business, and has worked in retail.
In his final report dated April 8, 2002, Dr. Cooley concluded, in pertinent part:
In this examiner's opinion, Mr. Murphy does have Attention Deficit Hyperactivity Disorder and is significantly intellectually limited. He does not qualify for a diagnosis of a learning disability because his IQ and his academic skills are quite similar. In a more generic sense, however,
he is clearly learning disabled based on his limited cognitive skills particularly in the verbal domain. Finally, Mr. Murphy appears to be experiencing a Generalized Anxiety Disorder or an Adjustment Disorder with Anxiety. Mr. Murphy's behavior in the presence of this examiner indicates severe anxiety and fear that he reacts to with anger, denial, defensiveness, and suspicion and he tries to protect himself from people and procedures he does not fully understand. He could truly benefit from some counseling as he awaits the resolution of his employment status.
Dr. Cooley's evaluation was forwarded to Murphy's counsel, and to Dr. Diaz, who, after re-evaluating Murphy and reviewing prior test results and Dr. Cooley's report, prepared a second report for the PBSO. In this report dated May 9, 2002, Dr. Diaz concluded that "Murphy, within reasonable probability remains not fit for duty to function in law enforcement at this time."
Dr. Diaz left open the possibility that with appropriate treatment, Murphy may, at some future date become fit for law enforcement duty.
However, on September 16, 2002, Murphy's own doctor, forensic psychiatrist Harley Stock (Dr. Stock), opined in pertinent part:
. . . Murphy is likely to have difficulties in carrying out the following specific duties and responsibilities of a law enforcement officer:
Subdue resisting offenders using appropriate force, including the use of deadly force – Deputy Sheriff Murphy may become emotionally overwhelmed if placed in a position in which lethal force may be necessary. In this regard, such behavior may lead to the endangerment of the public or other officers.
Conduct law enforcement investigations – Deputy Murphy has a difficult time formulating appropriate law violations. Because of his limited cognitive abilities, he will have difficultly preparing and distributing reports. These deficits may manifest themselves in difficulty coordinating activities at crime scenes; collecting crime scene evidence; conducting interviews, taking sworn statements, formal confessions or depositions; preparing reports of affidavits; and presenting testimony in both civil and criminal proceedings.
Should Deputy Murphy be placed in a situation in which his anxiety level overwhelms him, he will have difficulty interacting with the public. His judgment is likely to be impaired in such a situation and he may not follow appropriate procedures.
He is also likely to have difficulties in the following area performance aptitudes: Data Utilization – Deputy Sheriff Murphy will have difficulty calculating or tabulating data or information in a systemized way. He also may have difficulty performing actions subsequent to these computational operations.
In terms of situational reasoning, Deputy Sheriff Murphy is likely to have difficulty exercising good judgment and decisiveness in those situations that are unexpected and involve exposing the Palm
Beach County Sheriff's Office to significant litigation.
Based on the above, it is this examiner's opinion that Deputy Sheriff Murphy should be considered permanently unfit for duty. It is further my opinion that no reasonable accommodation can be offered and that his impairment is a direct result of his employment as a law enforcement officer.
. . .
No purpose is served by additional invasive recitation of the content and conclusions of reports and testimony provided by doctors who evaluated Murphy. The evidence regarding Murphy's fitness for duty, with or without accommodation, has been carefully considered and demonstrates that no combination of job accommodations, medication, treatment or training, would render Murphy able to fulfill the requirements for service as a deputy sheriff at any time material to this case, including at the time he was terminated on October 11, 2002.
Notwithstanding the medical evidence, Murphy contends that PBSO had, and continues to have, the ability to ". . . put me into another law enforcement position, which they can clearly still do."
With all respect for Murphy's opinion, the unambiguous testimony provided by Respondent’s human relations office is that PBSO does not distinguish between what a deputy is required to do at the airport, on road patrol, or behind a desk. To the contrary, officers assigned to PBIA, or off duty officers for
that matter, may be mobilized on a moment's notice to address a profoundly dangerous and chaotic situation, at their assigned post, or elsewhere in the jurisdiction.
Contrary to the assertion in his FCHR charge, there was no evidence that Murphy "ask[ed] for help with his law enforcement duties." He rejected as insulting any discussion of being placed in a civilian position or a position involving a substantial wage cut. The only accommodation he sought was re- assignment to PBIA in his former position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Sections 120.57 (1) and 120.569 and Chapter 760, Florida Statutes (2002).
The burden of proof in this proceeding is on the Petitioner, who must establish by a preponderance of evidence that his termination from employment constituted unlawful discrimination within the purview of Chapter 760. See Florida
Department of Transportation v. J.W.C. Company, 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977).
In a proceeding wherein a petitioner asserts an unlawful employment practice, although the burden of going
forward with the evidence may shift, the ultimate burden of persuasion to establish proof of an unlawful employment practice remains on the petitioner. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
Because Chapter 760 is patterned after federal civil rights law, federal case law interpreting the federal civil rights statutes applies to interpreting the provisions of Chapter 760, Florida Statutes, the FCRA. See Green v. Burger King Corporation, 728 So. 2d 369, 370-71 (Fla. 3rd DCA 1999); School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981); see also Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).
Assuming arguendo that the Petitioner was able to prove that he suffered from a protected handicap and otherwise established a prima facie case, the claim must yet fail because there is no persuasive evidence that PBSO terminated Petitioner's employment on account of any or all of the disabilities diagnosed following the January 18, 2002, incident at PBIA.
Rather, the termination followed months of testing and evaluation by doctors for both parties which produced substantially similar evidence that he was unfit for duty in that he was unable to perform the essential functions of his job
as a law enforcement officer, with or without reasonable accommodation.
Based on the above Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Petitioner’s charge of discrimination and dismissing his complaint.
DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Michael G. Whelan, Esquire Whelan, DeMaio & Kiszkiel, P.A.
Searcy Denney Scarola Barhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
