STEPHEN J. SEFSICK, )
vs. ) CASE NOS. 87-5347
Respondent. )
The final hearing in this case was held on July 7-8, and November 16, 1988, in New Port Richey and Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:
For Petitioner: Michael A. Linsky, Esquire
For Respondent: Ernest L. Reddick, Esquire
The issue in this case is whether the Department of Corrections (Respondent) engaged in unlawful discrimination based upon retaliation against Stephen J. Sefsick (Petitioner) due to his duty reassignment while at Zephyrhills Correctional Institution (ZCI), and transfer from ZCI to Polk Correctional Institution (PCI). During the hearing, Petitioner called nine witnesses, and introduced twenty-five exhibits. The Respondent called six witnesses, and introduced two exhibits. Two exhibits which Petitioner sought to introduce were rejected.
The final volume of the transcript of the final hearing was filed on November 30, 1988, and the parties were given ten days thereafter to file their proposed recommended orders, including proposed findings of fact. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
Petitioner was employed as a correctional officer I by the Respondent from November 21, 1980, to May 12, 1986. From November 21, 1980, to January 23, 1986, he was employed at ZCI, and from January 24 to May 12, 1986, he was employed at PCI.
Respondent is an employer within the terms of Chapter 760, Florida Statutes, the Florida Human Rights Act of 1977.
On or about August 30, 1985, Petitioner filed EEOC Charge 025851630 (FCHR No. 85-3696; DOAH Case No. 87-2549) alleging reverse discrimination against him by the Respondent resulting from a promotion which Petitioner did not receive. Respondent had been notified of Petitioner's charge in FCHR No. 85-3696 on or about September 5, 1985. The facts and disposition of this prior charge are not material to the issues in this case since they were the subject
of previous Recommended and Final Orders which ultimately dismissed Petitioner's charge of reverse discrimination. However, it is Petitioner's contention that the two charges of unlawful discrimination based on retaliation at issue in this case followed from Respondent's actions in response to his filing of the reverse discrimination charge in FCHR No. 85-3696 (DOAH Case No. 87-2549).
On or about September 11, 1985, Lt. Neal Rabon, correctional officer shift supervisor at ZCI, visited Petitioner at Petitioner's home in the afternoon, which was normally the time Rabon was on duty. However, when Rabon visited Petitioner, neither were on duty. Rabon knew of Petitioner's reverse discrimination complaint through the "grapevine," when he visited him on that day. He went to Petitioner's home as a friend to try to get him to drop his complaint. No one at ZCI told Rabon to visit Petitioner; he did this on his own because he liked Petitioner and felt it would be best for him to drop the complaint. He told Petitioner that if he dropped the reverse discrimination charge, the "wound" caused by the filing of this charge would heal in time.
Petitioner told Rabon he would think about dropping his complaint if he could have written assurance from Superintendent Ray Henderson of ZCI that he would not face any retaliation over this complaint. Rabon told Petitioner that he would talk to Superintendent Henderson, and let him know of Petitioner's concern about retaliation.
Within a day of his meeting with Petitioner on September 11, 1985, Rabon spoke to Superintendent Henderson about the matter. The Superintendent told Rabon he would not discuss the matter while Petitioner's discrimination complaint was pending.
On September 13 and 16, 1985, Rabon made follow-up visits during his normal duty hours to Petitioner's house to find out if he had decided to drop his complaint, and also to let him know that Superintendent Henderson would not discuss the matter while his complaint was pending. Petitioner decided not to drop his reverse discrimination complaint, which thereafter resulted in a Final Order issued by the Florida Commission on Human Relations dismissing his complaint. 9 FALR 6027.
On September 10 and 17, 1985, while on duty, Petitioner approached his immediate supervisor, Lt. Jackie Barber, and attempted to talk to Barber about his reverse discrimination complaint. Barber refused to discuss the matter each time, but Petitioner persisted on September 17, 1985, and let him know he was not upset in any way with Barber. At the request of Major Sammy Hill, Barber wrote reports on September 24, 1985 about these two incidents, which were thereafter signed and notarized on October 10, 1985.
Superintendent Henderson and Major Hill met with Petitioner on September 23, 1985, concerning reports they had received that Petitioner was talking to other correctional officers about his reverse discrimination
complaint while on duty. With the exception of the incidents with Lt. Barber, it was not established that Petitioner had been discussing his complaint with others while on duty. His complaint was well known among staff at ZCI, however, due to general gossip and discussion among employees. Nevertheless, Henderson firmly ordered Petitioner not to discuss the merits of his complaint with the staff at ZCI, and not to be disruptive. Henderson did not use profanity during this meeting, as alleged by Petitioner.
On or about October 7, 1985, Petitioner tried to discuss his complaint with Carole Butler, a neighbor and fellow worker at ZCI, while they were both off duty and in the mobile home park where they lived. Butler told him she did not want to discuss the matter, and it was dropped.
Shortly thereafter, on or about October 11, 1985, Petitioner was approached while off duty in his mobile home by the wife of another correctional officer at ZCI. The woman told Petitioner that her husband was involved in some illegal activities, and Petitioner immediately reported this to his supervisor at the time, Major Steve Comerford, who dismissed the matter as a personal affair between the woman and her husband. There is no evidence that Petitioner's action in this regard was improper or disruptive. When illegal activities involving another correctional officer were reported to him by that officer's wife, he simply reported it to his superior for whatever action was deemed appropriate, and in this instance no action was taken.
Petitioner had a conversation with correctional officer "Sam" Zamora on or about October 16, 1985, which Respondent characterizes as disruptive. However, the evidence does not support Respondent's characterization of this discussion which appears to have been about provisions in the union contract, and not about his complaint.
Due to Superintendent Henderson's concern that Petitioner was continuing to discuss his complaint with staff after having been told to "discontinue such disruptive actions," Petitioner was called to another meeting with the superintendent and Major Hill on October 21, 1985. During this meeting, Henderson again told Petitioner to stop discussing his complaint, but he did not specify when Petitioner allegedly had disregarded his earlier order. Petitioner denied he had further discussed his complaint with any staff at ZCI since being ordered not to do so on September 23, 1985, although he had tried to discuss it with Butler while they were off duty. Henderson told Petitioner he would take action against him if he continued discussing his complaint and being disruptive.
Later that same afternoon, an event occurred which directly resulted in Petitioner's duty reassignment to perimeter post on a continuous basis from October 21, 1985, until his last day at ZCI which was January 23, 1986. The facts surrounding that evert are in dispute, but from a review of all the evidence presented, including the demeanor and credibility of witnesses who testified, the following findings are made:
Following the meeting with Superintendent Henderson and Major Hill on October 21, 1985, Petitioner reassumed his duty station in D-Dorm at 4:11 p.m.
Petitioner began writing a report about the meeting he had just had. He was at the officer's control station in D-Dorm, and was writing with his head down at the desk.
At 4:35 p.m., correctional officer Sandra Rosette entered D-Dorm and observed Petitioner writing at the desk and not paying attention to the inmates. Radios were playing loudly, and inmates were moving around in the Dorm. This was permissible and usual at that time of day.
Rosette left D-Dorm and reported to Major Hill that Petitioner was writing a report in D-Dorm.
The count of inmates in D-Dorm began at 4:45 p.m., and cleared between 4:50 and 5:00 p.m. Rosette was not in D-Dorm during the count. During an inmate count, all inmates must be in their cells, the dorm must be quiet, and activity is at a minimum until the count is cleared.
At approximately 5:00 p.m., after having received a report from Rosette of what she had observed in D-Dorm, Major Hill approached D-Dorm. Radios were playing loudly and the inmates were moving around the dorm in a noisy manner. Hill could not remember whether or not the count had cleared as he approached D-Dorm. Through the dorm door he observed Petitioner at the desk
with his head down writing something. In order to get Petitioner's attention to let him in, he pounded on the door, and after entering the dorm, he ordered Petitioner to check out the noise in the dorm. While Petitioner was away from the officer's station, Hill confiscated Petitioner's report from the desk drawer where he had placed it. Petitioner returned and asked Hill to return his report, but Hill refused, and left the dorm, after ordering Petitioner to open the door to let him out.
At approximately 5:20 p.m., Petitioner was relieved of duty in D- Dorm by order of Major Hill, and was placed on outside perimeter post.
Perimeter post is usually rotated among all correctional officers. It is generally viewed by the officers as undesirable duty, although it is very important to the security and control of the facility. While on perimeter post, an officer patrols outside the perimeter with a loaded shotgun. He is expected to constantly observe the fence area. Only one other officer had been placed on perimeter post on a continuing basis, and it was at his request for medical reasons.
Petitioner objected to his permanent perimeter post assignment, but Major Hill took this action because he felt Petitioner was in an "agitated state," and it was in the best interest of ZCI for him to be separated from inmates while agitated. Hill also maintained that this action was not taken as punishment, but to avoid staff dissension and disruption. Superintendent Henderson confirmed that it was unusual for this assignment to last for such a continuous period.
Petitioner remained on perimeter post from October 21, 1985 until January 23, 1986, his last day at ZCI. The evidence does not establish that there were any acts of disruption or dissension by Petitioner while on perimeter post. Although Hill testified that Petitioner continued to discuss his complaint, his testimony on this point was vague and unsupported.
On January 6, 1986, Petitioner sent a note to Major Hill requesting that he be removed from permanent perimeter post duty, which Hill denied.
In early January, 1986, Superintendent Henderson was transferred from ZCI, and Sterling Staggers became Superintendent at ZCI. Henderson had discussed Petitioner with Staggers, and told Staggers he had been considering a
transfer of Petitioner to another correctional facility. However, Henderson had not made a decision on a transfer for Petitioner prior to his leaving ZCI.
On January 9, 1986, Superintendent Staggers notified Petitioner that he was being transferred to Polk Correctional Institution (PCI), effective January 24, 1986. This decision was made after Staggers reviewed Petitioner's personnel file, and discussed the matter with Major Hill and Superintendent Henderson. There was no showing that this transfer was made to meet the needs of PCI or ZCI. It appears it was made by the new Superintendent at ZCI to remove what others told him was a problem and disruptive employee.
The transfer to PCI presented several personal difficulties to Petitioner. The travel time and expense was considerable, and Petitioner had only one car which his wife used to get to work. While at ZCI he would walk to work, but after his transfer, his wife had to quit her job so he could use the car to get to PCI. Also, he was allowed to park his mobile home in a park provided by ZCI for $2 per month, whereas a similar arrangement was not available at PCI.
Petitioner filed a grievance over his transfer which was denied by Superintendent Staggers as nongrievable because he did not consider a transfer to be a form of discipline. He reported to work at PCI on January 24, 1986, but also appealed the denial of his grievance to the Department of Administration.
While at PCI, Petitioner had a very good work record. There were no adverse incidents, and in fact his employee performance appraisal dated April, 1986, indicates a general rating of "achieves standards," and includes a comment that, "This officer will be a real asset to PCI and the Department of Corrections in the future. He has a very positive attitude."
The Department of Administration upheld Petitioner's grievance in March, 1986, concerning his transfer from ZCI to PCI, and ordered his reinstatement at ZCI. However, on April 1, 1986, Petitioner decided to stay at PCI and not to return to ZCI. Thereafter, he decided to resign from the Department of Corrections on May 12, 1986. Petitioner could have remained at PCI or returned to ZCI, but voluntarily decided he did not want to do either.
On or about October 24, 1985, Petitioner filed a Charge of Discrimination against Respondent (EEOC No. 025860117; FCHR 86-0424; DOAH Case No. 88-0663) with the Florida Commission on Human Relations, concerning his assignment to permanent perimeter post. After investigation, a determination of "cause" was entered.
On or about January 23, 1986, Petitioner also filed a Charge of Discrimination against Respondent (EEOC 025860438; FCHR No. 86-1287; DOAH Case No. 87-5347) concerning his transfer from ZCI to PCI with the Florida Commission on Human Relations. After investigation, a determination of "no cause" was entered.
The parties have timely requested a formal hearing on these Charges of Discrimination which concern his permanent perimeter post assignment and transfer to PCI.
On the issue of damages, Petitioner presented evidence showing he incurred reasonable travel expenses, at 20 cents per mile, of $1350 from January
24 to May 12, 1986, going to and returning from PCI each day, a total distance each day of 90 miles. Additionally, from May 12, 1986 until January, 1989, he
alleges he will incur additional damages of $80,473.61, including lost wages, compensation for lost leave, mobile home park lot rental, moving expenses, uniform allowances, and lost employer contributions for retirement, health and life insurance, as well as 12% per annum interest thereon. This allegation of additional damages is unsupported in any way; it is merely his estimation based upon unsubstantiated assumptions. Petitioner also asserts he will seek reasonable attorney's fees at the conclusion of these proceedings, if he prevails, but has presented no specific claim in this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.
The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate, nondiscriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).
To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Burdine, supra 450 U.S. at 254. The prima facie case requirement serves to eliminate the most common nondiscriminatory reasons for actions taken by an employer against an employee. Teamters, supra 431 U.S. at 358, and n. 44.
Petitioner has established a prima facie case of discrimination through retaliation concerning both charges at issue in this proceeding. It was clearly unusual for a correctional officer to be assigned to perimeter post for as long as Petitioner, especially when such officer requested to be relieved of perimeter post. Petitioner was purportedly placed on perimeter post because he was disruptive and in an agitated condition. Yet, on perimeter post officers must carry loaded shotguns and are expected to closely maintain the security of the facility's perimeter. There is absolutely no evidence that Petitioner was disruptive or agitated while on perimeter post, and still he was ordered to remain on this duty for three months; he was never told what he had to do to in order to return to a normal duty assignment, and apparently would have remained on permanent perimeter post indefinitely, except for his transfer to PCI.
Regarding the transfer, there is no evidence that it was made either to meet the needs of ZCI or PCI. Petitioner was transferred by the incoming Superintendent simply to get rid of what he was told, and what others at ZCI perceived to be, a problem employee. Yet, the only "problem" created by Petitioner was the filing of his original reverse discrimination charge. The evidence does not support Respondent's claim that Petitioner was disruptive on the job and repeatedly discussed his complaint with other officers and staff at ZCI while on the job. Petitioner had a record as a good employee while at ZCI, except for these matters, and his record as PCI was also good.
Respondent has not presented evidence which would establish a legitimate, nondiscriminatory basis for these actions taken against Petitioner. In early September, 1985, after Petitioner had decided not to drop his reverse discrimination complaint, he was called into Superintendent Henderson's office, and ordered not to discuss his complaint with other officers. He had attempted to talk to his immediate supervisor, Lt. Jackie Barber, and to assure Barber he was not angry with him, prior to this first meeting with the superintendent. However, this was the only instance shown where Petitioner attempted to discuss his complaint while on duty. After the Superintendent ordered him not to discuss the matter, he complied, except for one instance on October 7, 1985, while off duty when he brought it up with a neighbor and fellow officer, Carole Butler, at the mobile home park where they lived. Nevertheless, Superintendent Henderson felt it necessary to meet with Petitioner a second time on October 21, 1985. It was following this second meeting, while Petitioner was writing a report of the meeting in D-Dorm prior to count, that events occurred which precipitated his assignment to perimeter post. The evidence, however, does not show that Petitioner did anything improper, or against established procedures in D-Dorm on that day. The count had not begun when Sandra Rosette was in the dorm, and it had cleared by the time Major Hill approached and entered the dorm. As such, it was permissible for the inmates to be playing radios, and to be outside of their cells when the count was not being taken. Petitioner completed the count in D-Dorm between the time Rosette left and Hill entered, and there is no evidence that the count was in error.
Even if Respondent's concerns about the noise and apparent lack of order in D-Dorm on October 21, 1985, were legitimate, the extreme actions which it took against Petitioner establish that these concerns were simply a pretext for discrimination. First, by assigning him to permanent perimeter post for three months, and then by transferring him to another facility 45 miles away which required him to travel 90 miles each day to and from work, Respondent retaliated against Petitioner for his original claim of reverse discrimination, and his refusal to drop that complaint. He was a "problem" only insofar as he sought to follow legitimate, established procedures for presenting a claim of discrimination, and as a result, he was punished through reassignment and transfer.
Regarding Petitioner's claim for damages, he is not entitled to any damages after the date of his voluntary resignation on May 12, 1986. He was successful in his grievance concerning his transfer to PCI, but instead of returning to ZCI, as he could have, or remaining at PCI, he chose to leave the Department of Corrections. This was his own decision, and nothing in the record indicates that he was forced, or even urged, to resign by the Respondent. Additionally, Petitioner did not present competent substantial evidence in support of any damages after the date of his resignation; he only presented his estimations based upon unsupported assumptions. However, Petitioner did establish that he incurred reasonable travel expenses between January 24 and May 12, 1986, of $1350, based upon a daily round trip of 90 miles, at 20 cents per mile. Respondent did not rebut this evidence, or seek to show that Petitioner was reimbursed for this travel. As such, he is entitled to this award for travel expenses prior to his resignation.
Based upon the foregoing, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Respondent has engaged in unlawful discrimination against Petitioner, based upon retaliation, in assigning him to perimeter post from October 21, 1985 until January 23, 1986, and then
transferring him from ZCI to PCI, effective January 24, 1986, and further, awarding Petitioner damages in the amount of $1350 resulting from these actions.
DONE AND ENTERED this 14th day of December, 1988 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5347, 88-0663
6-7 Rejected as irrelevant and unnecessary.
10-22 Adopted in part in Finding of Fact 14, but otherwise rejected as cumulative and unnecessary.
23-25 Rejected as irrelevant and unnecessary.
28-29 Rejected as speculative and unnecessary.
30-31 Adopted in Findings of Fact 14-16, but otherwise rejected as unnecessary.
32-34 Adopted in Finding of Fact 18, but otherwise rejected as unnecessary.
35 Adopted in Finding of Fact 20.
36-38 Adopted in part in Finding of Fact 20, but otherwise rejected as not based on competent substantial evidence in the record.
39 Adopted in part in Finding of Fact 24, but otherwise rejected as not based on competent substantial evidence in the record.
3-7 Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8.
16-17 Rejected as unnecessary and irrelevant. 18-19 Adopted in Finding of Fact 8.
20 Rejected as not based on competent substantial evidence. 21-23 Adopted in Finding of Fact 9.
24-25 Rejected as not based on competent substantial evidence. 26-27 Rejected in Finding of Fact 11.
28-29 Adopted in Finding of Fact 13.
30-54 Adopted and Rejected in part in Finding of Fact 14. 55-57 Adopted in Finding of Fact 15.
58-60 Adopted in Finding of Fact 16.
63-65 Adopted in Findings of Fact 18 and 20. 66-67 Adopted in Finding of Fact 20.
Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610
Donald A. Griffin Executive Director Florida Commission on Human Relations
