STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA KUHN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6943

) JIM GILLUM, SHERIFF OF PASCO ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 20 and 21, 1991 in Newport Richey, Florida.

APPEARANCES

For Petitioner: Joseph Episcopo, Esquire

1060 West Branch Boulevard, Suite 103

Tampa, Florida 33612

For Respondent: Keith C. Tischler, Esquire

Powers, Quaschnick & Tischler

2544 Blairstone Pines Drive, Suite A Tallahassee, Florida 32301

and

David L. Swanson, Esquire Pasco County Sheriff's Office 8700 Citizens Drive

New Port Richey, Florida 34654 STATEMENT OF THE ISSUE

Whether or not Petitioner was demoted and discharged from her position as deputy sheriff of Pasco County, Florida, as a result of her gender (female).

PRELIMINARY STATEMENT

On April 20, 1989, Petitioner filed a charge with the Equal Employment Opportunity Commission (EEOC). That charge was investigated by the Florida Commission on Human Relations (FCHR), the deferral agency for the EEOC. Petitioner charged that the demotion and discharge by Respondent, Jim Gillum, from her position with the Pasco County Sheriff's office was the result of her sex (female). Petitioner's charge was forwarded and processed by FCHR on or about April 25, 1989. On April 27, 1989, after an investigation, FCHR issued a notice of determination finding "cause" to further process the charge on or about May 31, 1990.

Thereafter, Respondent sought redetermination which was denied by FCHR resulting in the issuance of notices of failure to conciliate. Subsequently, Respondent submitted a petition for hearing with FCHR on or about August 28, 1990, and an amended petition for hearing on September 10, 1990. As a result, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes and Rule 22T- 8.016(1), Florida Administrative Code.

At the formal hearing, Petitioner presented the testimony of Wayne Thomas, a former lieutenant employed by Respondent until his resignation in June, 1989, James Frances, a chief deputy employed by Respondent, Thomas Pagels, an investigator employed by FCHR who investigated the subject case and she (Respondent) testified on her behalf. Respondent presented the testimony of William Stoner, a former deputy sheriff employed by Respondent until May 24, 1989, Sandra Reed, a lieutenant employed by Respondent, Delmos Barfield, a trooper employed by the Florida Highway Patrol, Michael Ferrantelli, a deputy employed by Respondent, Michael L. Phillips, a captain employed by Respondent and Roger Hoefs, a sergeant presently serving as a road supervisor with Respondent. Petitioner introduced nine (9) exhibits which were received in evidence at the hearing and Respondent introduced eight (8) exhibits which were received in evidence at the hearing. The transcript of the hearing was filed on April 1, 1991 and the parties were afforded leave through April 30, 1991, to file proposed recommended orders. The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

Based on the testimony of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

FINDINGS OF FACT

1. Petitioner, Cynthia Kuhn, was employed by the Pasco County Sheriff's office from January 4, 1977 and was continuously employed until she was discharged from employment with Respondent on March 8, 1989. Prior thereto, on February 16, 1989, Petitioner was demoted from the rank of lieutenant to sergeant.

   
   

2. Petitioner was certified as a law enforcement officer in Florida in 1973 and began employment with the City of Newport Richey Police Department from 1973 until the end of 1976. Petitioner attended the Pinellas Police Academy where she graduated in the top ten percent of her class. Her class standing was number 3 in a class of 40 students. In her evaluation report from the Police Academy, she received an excellent rating in all areas except character and judgement where she received a good rating. When John Short was elected sheriff of Pasco County and took office in January, 1977, Petitioner along with several other Newport Richey Police Department employees transferred to the sheriff's office.

   
   

3. During her first employment with the Pasco County Sheriff's Office in 1977, Petitioner was employed as a deputy sheriff working the first few months doing administrative work out of the Dade City office. For the next two years Petitioner worked in crime prevention and community services and organized a unit in the sheriff's office to function as such. Petitioner thereafter worked as the public information officer approximately four years. Petitioner was promoted to the rank of sergeant through promotional exams. During

   approximately 1984, Petitioner instituted the Crime Against Children's Unit and supervised that unit for a period. From that position, Petitioner took over the Detective Bureau and supervised the detectives. During 1987, Petitioner was promoted to the rank of lieutenant and took over the responsibility of supervising the special operations division which was comprised of the specialized units within the sheriff's office to include aviation and marine, traffic enforcement unit, a special deputy unit and the canine unit. From 1977 to 1987, Petitioner enjoyed an exemplary work record having received only a couple of disciplinary actions in her personnel file relative to traffic accidents with a county vehicle.

   
   

4. At the time of Petitioner's promotion to lieutenant, she was the only lieutenant actively employed by the Respondent. Throughout her employment with Respondent, Petitioner has received numerous commendations from local citizens and civic organizations including MADD, local news organizations, public school officials, and other home owners civic associations. Petitioner received three

   (3) outstanding performance evaluations for the three (3) years immediately proceeding her demotion and ultimate discharge by Respondent. Petitioner's performance evaluations attested to the facts that she was completely reliable and required minimum direction; was very well informed in all phases of her work; consistently made sound decisions; definitely interested and cooperated well; was a steady and hard worker; impressed favorably those around her and her output was consistently above job requirements. Her supervisors rated her above average and sound and noted that she was very articulate; always willing to help and was very good at motivating fifteen (15) detectives that she supervised.

   
   

5. As Petitioner's tenure as a lieutenant grew in the Special Operations Division, she began to articulate her suggestions as to staffing, priorities, procedures, and budgeting. She also became engaged in arguments and discussions with Major Bogart regarding her suggestions/differences. The more that she began to express and otherwise articulate her suggestions, her relationship with Major Bogart began to deteriorate. As a result, Major Bogart started disciplining Petitioner over minor infractions of Respondent's rules. As example, Bogart disciplined Petitioner for failure to keep him advised about citizen's complaints directed at a particular deputy after each complaint was filed. Petitioner's plan was to collect all of the information about that deputy and then forward it to Bogart for action when all of the information was gathered. This had been the usual procedure in prior actions and one which had been followed by the other male lieutenants. However, Major Bogart wrote Petitioner up for not following the proper chain of command because she did not keep him informed, step by step. During this same period, Major Bogart specifically directed a male lieutenant to wait and collect all negative information about another deputy and bring it to his attention. When Petitioner followed this exact same procedure which was authorized by Major Bogart, Petitioner was criticized and disciplined.

   
   

6. In another incident, Major Bogart disciplined Petitioner for an infraction committed while she was off-duty. Specifically, a male lieutenant was accused of shoplifting at Sears. Petitioner came to the scene and proceeded to show her badge and conducted an investigation on behalf of that deputy. Bogart charged Petitioner with self-initiating a report and conduct unbecoming a law enforcement officer. In Petitioner's written response to the allegations, she successfully pointed out to Bogart that he was citing the wrong standard operating procedure (SOP) in his charges. Rather than drop the charges, as Bogart would do later with a male deputy, i.e., Gary Albin, he amended the charge and recommended three (3) days suspension. The Career Service Board reversed Bogart, dropped the conduct unbecoming charge and suspended the

   Petitioner for one day for "not keeping her chain of command advised." The male lieutenant accused of shoplifting was not disciplined for any violation despite the fact that Respondent was aware of the situation and the fact that that lieutenant did not advise his superior of the allegations as he was required to do.

   
   

7. By 1988, Petitioner sought and was given a transfer from Bogart's Operation's Division to Road Patrol under Captain Michael Phillips. Despite Petitioner's efforts to transfer in order to escape the criticism and ire of Major Bogart, Captain Phillips continued to criticize Petitioner for minor rule infractions. As example, Captain Phillips disciplined Petitioner for a violation of rolodex updating. Specifically, Petitioner's rolodex did not contain her address despite the fact that it had her phone number. Petitioner later reviewed the rolodex files of approximately 60 other male deputies, including Captain Phillips, and they all related the same failure to completely update their rolodexes, the identical violation for which Petitioner was disciplined and none of the other male deputies were similarly disciplined.

   
   

8. On September 20, 1988, Sergeant William Stoner, a deputy with the Pasco County Sheriff's office, was involved in a one car accident while off-duty. A van swerved in front of Sergeant Stoner's jeep and boat causing Stoner to brake hard in an effort to avoid hitting the van. As a result, the tongue on the boat trailer separated causing the trailer to jackknife and Sergeant Stoner lost his boat on Highway 19 at approximately 5:00 p.m. There was some damage to the hull and stringers on the boat, and the trailer. Petitioner was on duty and came to the scene of Stoner's capsized boat and the resulting traffic jam. Stoner was angry about the incident, however he was physically capable of putting the clutch linkage back on the jeep and moving it off the roadway. He also radioed the marina for assistance in moving his boat off U.S. 19.

   
   

9. Petitioner noticed an odor of alcohol on Stoner's breath. Otherwise, Stoner was able to speak, walk and climb aboard the boat in the roadway. Petitioner did not believe Stoner was intoxicated to the extent that his normal faculties were impaired. Nevertheless, Petitioner phoned her supervisor, Captain Phillips, advised him of the accident and her belief that Stoner had been drinking and to initiate an Internal Affairs investigation. To that end, Phillips instructed Petitioner to have Stoner transported to the Pasco County Sheriff's office for a mandatory breathalyzer test. Petitioner was given instructions from Phillips as to the procedure to follow in the event that Stoner objected to the taking of a breathalyzer test. Stoner consented to the test without being ordered. Prior to informing Stoner of the potential Internal Affairs investigation, Petitioner asked Sergeant Sandra Reed, the backup deputy who was dispatched to assist in relieving the traffic jam, to smell Stoner's breath to determine whether or not she could determine if he had been consuming alcohol. Reed got close enough to Stoner to confirm Petitioner's suspicion that the odor was in fact alcohol. Sergeant Michael Ferrantelli also came on the scene to direct traffic. Neither he nor Sergeant Reed have ever stated that Stoner was intoxicated that day. Stoner also denies that he was intoxicated.

   
   

10. In spite of the fact that three (3) on-scene deputies and Stoner himself denied intoxication and impairment, both Phillips and Bogart determined that Stoner was intoxicated to the extent that his faculties were impaired. Neither were at the scene nor did they speak to Stoner that night. The case was referred by Petitioner to the State Attorney's office on September 20, 1988.

11. On or about mid-December, 1988, the State Attorney's office elected not to file charges against Stoner because "there are no witnesses who witnessed the defendant operate a motor vehicle but more importantly, there are not witnesses who testified defendant was impaired. Some witnesses say defendant was drinking but none feel he was impaired. The only evidence of impairment comes from a breath test given to defendant prior to arrest. A pre-arrest test is inadmissible and no post-arrest breath test was ever given."

    
    

12. On February 10, 1989, Major Bogart decided that Petitioner had "botched" the DUI investigation of Stoner on September 20, 1988 and recommended her demotion from lieutenant to sergeant. Prior to Petitioner being afforded an opportunity to respond and challenge the demotion, Bogart recommended her termination based on an Internal Affairs investigation conducted after the Stoner incident. On March 8, 1989, Petitioner was dismissed allegedly for being untruthful and conduct unbecoming a deputy.

    
    

13. Prior to questioning Petitioner, Bogart never advised her of her rights and he demoted her without considering her proffered mitigation in response to the charges.

    
    

14. The charge of untruthfulness which was filed against Petitioner was based on statements given by Deputy Ferrantelli on February 27-28, 1989 and subsequent statements given by Sergeant Stoner on March 1, 1989 when they were questioned by Internal Affairs about the September 20, 1988 incident involving Sergeant Stoner. Internal Affairs charged Petitioner and sustained the charge of untruthfulness against her allegedly because: (1) Deputy Ferrantelli stated that Petitioner approached him at the scene and advised him that she believed that Sergeant Stoner had been drinking and she was going to make believe she did not see anything; (2) Sergeant Stoner stated that he was ordered by Petitioner not to talk to the Florida Highway Patrol; (3) Petitioner denied making such a statement to Deputy Ferrantelli and denied ordering Sergeant Stoner not to talk to the Florida Highway Patrol trooper. On reviewing Deputy Ferrantelli's statements and contrasting those statements with the statements by Petitioner, her only contact with Deputy Ferrantelli related to her assignment to him to assist in traffic control. Deputy Ferrantelli's statement to the effect that Sergeant Stoner had been drinking but that she would act like she didn't see anything is incredible in view of Petitioner's request to Sergeant Reed to get close to Sergeant Stoner to determine if he had been drinking or if she could detect an odor of alcohol, Petitioner's call to her superior, Captain Phillips, to initially advise him of her perception that she detected an odor of alcohol on Sergeant Stoner and Deputy Ferrantelli's documented past problems regarding his untruthfulness and prior disciplinary problems while under Petitioner's supervision. In this regard, Deputy Ferrantelli was previously assigned to check on a "high risk" inmate every fifteen minutes and to verify his checks in a sworn documentation which was used to verify that the checks were in fact made. Deputy Ferrantelli did so while the inmate had been released from prison and therefore the checks could not have been made despite the fact that he swore that he had made the checks every 15 minutes as he recorded them on the sworn document. Deputy Ferrantelli was not discharged despite Respondent's contention that the penalty for untruthfulness is discharge. Deputy Ferrantelli admitted and it was found that he was untruthful in the past and he was not discharged for such untruthfulness. Other indicia of Respondent's disparate treatment as relates to Petitioner is evident based on the fact that Deputy Ferrantelli was given a polygraph exam to determine the truthfulness of his statements and Petitioner, despite her request to take a polygraph exam, was denied such an opportunity. This evidence is a clear case of disparity and was not explained by Respondent. 1/

15. Secondly, a review of Sergeant Stoner's statements during questioning by the Internal Affairs personnel reveal that the interrogator, Roger Hoefs, was slanting his questioning in a manner to obtain a result which would justify his later decision to sustain the charges levelled against Petitioner.

    Specifically, Sergeant Stoner's initial statement, in regard to Petitioner's statement to him "I don't think it's a real good idea for you to be talking to him" (a reporter) gave no indication of an order. However, when the Internal Affairs personnel rephrased their questioning to Sergeant Stoner, Petitioner's statement became an order. There's no indication that the opinionated statement to Sergeant Stoner could have met a definition of an order as first stated without regard to how Sergeant Stoner may have interpreted it almost six months after the alleged statement was made. Significantly, Sandra Reed denied that Petitioner made any statements to her regarding any effort to cover up anything of any sort or that she, for that matter, heard any rumors respecting any alleged cover up. This is so despite the fact that in the manner that the questions were put to Reed (very suggestive), she was emphatic on the fact that Petitioner never, in any manner, indicate that she was going to help Stoner or to treat him differently than she would any other member of the public. In this regard, Reed thought that Petitioner was perhaps trying to shield Stoner from the press and even made the remark "that press guy is all over him." (Respondent's Exhibit No. 4, Reeds I. A. Statement Page 7.) The suggestive questioning continued by the remark "OK well . . . but removing him from the scene . . . did it, in fact, seem odd to you . . . considering the whole investigation - as how it should have gone." Petitioner had remarked to Reed that he (Stoner) dumped his boat and "I think he's been drinking. ." The I.A. interrogator remarked that "OK but that was brought out immediately [upon her arriving at the scene]." The suggestive questioning by Hoefs continued by the following question "and how quickly after that was it that she had you kind of push . . . get him out of there?" Respondent's exhibit 4, Reed's I.A. statement page 8. The suggestive questioning continued even though Reed remarked that she had denied any alleged cover up by Hoefs remark during a question to the effect that "he had sworn testimony that Petitioner told more than one individual on the scene that 'Stoner is drunk' and I'm not going to see it." To that suggestive question, Reed remarked that Petitioner never told her that or anything resembling that statement as Hoefs suggested in his questions to Reed. Other indicia of the faulty conclusions reached by the Internal Affairs investigation is evidenced by Reed's statement that Petitioner showed her displeasure that the FHP refused to work the accident by relating to her that "FHP is not working it immediately after she returned to the station." (Page 10 of Respondent's exhibit 4, Reed's I.A. statement). Trooper Barfield related to Petitioner that he preferred that she worked the accident since it involved a fellow worker (of Petitioner). Barfield told Petitioner of an earlier accident investigation that he conducted involving a local law enforcement employee and he came under intense pressure from other law enforcement officials as it was so close to an election. Trooper Barfield begged off working the Stoner incident as he was fearful that he would undergo similar criticism if he worked the Stoner incident. Petitioner relented as she felt that she could not order Trooper Barfield, who worked for an independent agency, to conduct the investigation.

    
    

16. Sergeant Stoner was taken to the station to take a breathalyzer test by Sandra Reed. Stoner left his gun unattended in his jeep. When Petitioner's superior was told that she was about to have administered to Sergeant Stoner a breathalyzer test, her superior ordered her to place the breathalyzer test on hold and to that order, Petitioner expressed her displeasure based on the fact that she correctly considered that the longer a suspected intoxicated driver is

    detained from taking the breathalyzer test, the results may be flawed based on the hiatus between the time of driving the vehicle and the time the test was administered. Despite the fact that it took approximately 2 1/2 hours for clearance to be given Petitioner, when Sergeant Stoner took the test, he blew a

    .101 and a .106 blood alcohol content.

    
    

17. Prior to Sergeant Stoner being questioned by Internal Affairs on September 20, 1988, Stoner was given a rights advisement prior to the questioning whereas Petitioner was not accorded the same right. Additionally, Stoner received a two-day suspension for being .10 blood alcohol level whereas Petitioner was demoted and ultimately discharged.

    
    

18. Another indicia of disparity of treatment by Respondent is evident from the degree in which Petitioner was disciplined whereas Sergeant Stoner left his gun unattended on the evening of September 20, 1988, a clear departure from Respondent's SOPs, and he was neither charged nor disciplined for leaving his gun unattended. Bogart agreed that Stoner could have been terminated for just being .10 blood alcohol level but despite the two-day suspension, Bogart gave Stoner a satisfactory performance evaluation just one week after he gave testimony against Petitioner in this cause.

    
    

19. As stated, during the hearing, Bogart maintained that anyone who is untruthful in sheriff's office investigations is fired and that there are no exceptions to this policy. A review of the evidence herein reveals that this is not true. Specifically, Deputy Gary Albin was not terminated when he was found to have lied to Internal Affairs on February 3, 1988. Bogart accused Albin of theft whereupon the Career Service Board changed its charge to false or otherwise untrue statements concerning official sheriff's office matters. If Respondent's policy is as Bogart testified, Bogart should have changed the original erroneous charge he filed against Albin and charged him with untruthfulness in accordance with the Board's findings. This is especially true in view of the fact that Bogart did not hesitate to change the erroneous charge he initially filed against Petitioner in the Sears incident. Bogart maintains that that matter was "totally out of my hands" although the facts does not bear him out in this regard. Indeed, four months after Gary Albin had been found to have been untruthful, Bogart gave him a satisfactory performance evaluation. This is so despite Bogart's contention that he maintains high performance expectations and standards respecting those employees who he supervised.

    
    

20. Another example of Bogart's disparate treatment of Petitioner versus male contemporaries is evidenced by the explanation of why Stoner only received a two-day suspension for being .10 BAC on September 20, 1988. Bogart felt that a mitigating factor for Stoner was the fact that he was off-duty however when Petitioner was off-duty during the Sears incident, Bogart made no effort to use that as a mitigating factor when he imposed discipline against Petitioner. The only mitigation Petitioner received was the action by the Career Service Board which mitigated the punishment of Petitioner from that recommended by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to the sanction pursuant to Section 120.57(1), Florida Statutes.

    
    

22. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

23. Petitioner is a female and part of a protected class within the meaning of the Human Rights Act, Chapter 760, Florida Statutes.

    
    

24. Petitioner was qualified in her position as a lieutenant with the Pasco County Sheriff's office.

    
    

25. Petitioner has credibly established that her demotion and discharge on February 16, 1989 and March 8, 1989, respectively, were based on gender, disparate treatment and discrimination and those adverse actions were taken as a pretext to mask gender discrimination and disparate treatment. See Texas Department of Community Affairs v. Burdine's, 450 U.S. 248 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and Valdez v. Church's Fried Chicken, 47 FEP Cases 1172 (1986).

    
    

26. Respondent has failed to establish that the disparity in treatment was based on other business necessity or other legitimate nondiscriminatory reasons which would justify the disparate and adverse action used in disciplining the Petitioner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Petitioner be reinstated to the rank of lieutenant as of February 16, 1989.

   
   

2. Petitioner be provided all back pay, to include all raises and costs of living allowances for which she would have been entitled to had she been continuously employed at the rank of lieutenant from February 16, 1989 to the date of the entry of the final order.

   
   

3. Provide opportunities that Petitioner be tested for and receive any promotions to which she would have been entitled had she not been demoted on February 16, 1989.

DONE and ENTERED this 26th day of June, 1991, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1991.

ENDNOTES

1/ Although the usefulness of polygraph test results are questioned in the judicial system, to the extent that Respondent relied upon that test result in support of its decision to verify Ferrantelli's credibility and did not afford that same opportunity to Petitioner, disparity in treatment is clearly shown.

COPIES FURNISHED:

Joseph Episcopo, Esquire 1060 West Branch Boulevard Suite 103

Tampa, Florida 33612

Keith C. Tischler, Esquire Powers, Quaschnick & Tischler 2544 Blairstone Pines Drive Suite A

Tallahassee, Florida 32302

David L. Swanson, Esquire Pasco County Sheriff's Office 8700 Citizens Drive

Newport Richey, Florida 34654

Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

================================================================= AGENCY FINAL ORDER AND REMAND FOR FEES AND COSTS

NOTE: DOAH CASE NO. 91-4134F ESTABLISHED FOR FEES CASE WHICH WAS DISMISSED WITHOUT A HEARING ON 03/10/93

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

CYNTHIA KUHN, EEOC Case No. 151890616 FCHR Case No. 89-5853

Petitioner, DOAH Case No. 90-6943 FCHR Order No. 92-005

vs.

JIM GILLUM, SHERIFF OF PASCO COUNTY, FLORIDA,

Respondent.

/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; REMANDING THE MATTER TO THE

HEARING OFFICER FOR DETERMINATION OF MONETARY DAMAGES, ATTORNEYS'

FEES AND COSTS

1. Panel of Commissioners

   
   

   The following three Commissioners participated in the disposition of this matter:

   
   

   Commissioner Ronald P. Townsend, Panel Chairperson;

   Commissioner Marc C. Little; and Commissioner John W. Robertson.

   
   

2. Appearances

   
   

   For Petitioner Cynthia Kuhn: Joe Episcopo, Esquire

   1060 West Busch Boulevard Suite 103

   Tampa, Florida 33613

   For Respondent Jim Gillum:

   
   

   and

   
   

   Sheriff of Pasco County, Florida:

   Keith C. Tischler, Esquire Powers, Quaschnick & Powers Post Office Box 12186 Tallahassee, Florida 32317

   
   

   David L. Swanson, Esquire 8700 Citizens Drive

   New Port Richey, Florida 34654

   
   

3. Preliminary Matters

Cynthia Kuhn, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Jim Gillum, Sheriff of Pasco County, Florida, Respondent herein, unlawfully discriminated against her on the basis of sex (female).

In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint were investigated and a report was submitted to the Executive Director. On April 27, 1989, the Executive Director issued his determination finding reasonable cause to believe that an unlawful employment practice occurred. Following Respondent's request for a redetermination, a Redetermination: Cause was issued. After efforts to conciliate the matter were unsuccessful, Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding. On June 26, 1991, Hearing Officer James E. Bradwell entered a Recommended Order which finds that unlawful discrimination had occurred and that affirmative relief must be awarded to Petitioner.

Pursuant to notice, public deliberations were held on January 23, 1992, in Tallahassee, Florida before the above-named panel of Commissioners.

Findings of Fact

We have considered the hearing officer's findings of fact. There is competent substantial evidence to support each factual findings made by the hearing officer. The facts show that gender-based discrimination occurred first when Petitioner was demoted, then again when Petitioner was discharged.

It is noted, however, that the hearing officer recommends an additional proceeding for determining monetary amounts for damages. Petitioner's motion for attorneys' fees and cost are also unresolved.

CONCLUSIONS OF LAW

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. We adopt the conclusions of law. Unlawful discrimination did occur.

In addition, it is our conclusion that this matter must be remanded to the hearing officer for the calculation of back pay, fringe benefits, attorneys' fees, and costs. If reinstatement is impractical, then reasonable front pay must be awarded.

Remand to the hearing officer is appropriate. In Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), the court explained that a remand may be done in a case where the hearing officer recommends an additional proceeding (based upon evidence presented during the initial section 120.57 proceeding). The court referred to Public Bank of St. Cloud v. State, 351 So.2d 73 (Fla. 1st DCA 1977), where the hearing officer recommended an additional agency proceeding to allow the applicant to amend its application for a bank charter. It is note also that traditionally in employment discrimination cases, a bifurcated trial may be conducted, one trial for liability and a second trial for damages. See Collier v. City of Freeport, 48 FEP Cases 441 (N.D. Illinois 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir. 1984); Baker v. City of Detroit, 24 FEP Cases 1569 (E.D. Michigan 1978); Newmon v. Delta Air Lines, Inc., 7 FEP Cases 26 (N.D. Georgia 1973), and Poole v.

Williams, 7 FEP Cases 102 (S.D. Texas 1974).

Remand

Additional formal proceeding, in accordance with the requirements of section 120.57(1), Florida Statutes (1991), is appropriate with respect to determinations of monetary amounts for backpay, fringe benefits, costs and attorneys' fees. If reinstatement is impractical, then reasonable front pay must be awarded. Accordingly, the panel remands this matter to the hearing officer for the conduct of such formal proceeding.

It is so ORDERED:

Dated this 27th day of March, 1992.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Ronald P. Townsend, Panel Chairperson; and Commissioner Marc C. Little.

Commissioner Jack W. Robertson, dissenting.

I respectfully dissent from the majority holding in this case. The relevant facts are undisputed. On September 20, 1988, Petitioner was a Lieutenant on the staff of Respondent's police force. She injected herself into a possible drunk driving case involving one of her subordinates. In doing

so, she created an ethical problem for which there could be no reasonable solution- - Should she be loyal to, uphold, and support her subordinate? Should she fulfill her sworn duty to uphold the law? By her own admission, she became involved in a possible criminal offense. Even the most charitable view must conclude that she engaged in the obstruction of justice.

It is recognized that this Commission acts as the agency head and is therefore severely constrained with respect to the facts as found in the Recommended Order submitted by the hearing officer. On the other hand, I believe that the legal standards as set forth so succintly in Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991), place an analogous constraint upon the hearing officer. Statements and testimony by

Petitioner conflict with that of three other law enforcement officers. The hearing officer chose to believe Petitioner. As I read the legal standards in Chandler, it is not necessary to determine whose statements are more accurate. All that is relevant is for the hearing officer to recognize that these conflicting statements were before Respondent's Major Bogart at the time he chose to discipline Petitioner. The undisputed facts show that Major Bogart had these statements before him.

It is my view that the hearing officer failed to apply the standards set forth in Chandler. Moreover, I believe that I would be remiss if I did not express disapproval of the hearing officer's allowing the testimony of the Commission's investigating officer as an "expert witness" even though Respondent vigorously objected. I believe this was an abuse of the broad discretion that is given to administrative hearing officers. It is further proof, however, that the hearing officer not only ignored the standards in Chandler, but attempted to substitute the testimony of a so-called "expert" for the employment decision of the Respondent, all of which is in clear contravention of Chandler.

In applying the standards, we first ask whether Petitioner established a prima facie case of sex discrimination. There is absolutely no evidence of any action against the gender- - - that is against any other person of the female gender. If discrimination of this kind exists, it is rarely, if ever, restricted to one person. Even assuming that a prima facie case was made, we ask whether Respondent articulated a legitimate, nondiscriminatory reason for its decision. Was the reason clear, reasonably specific, and worthy of credence? My answer to these latter two questions is in the affirmative. In closing, I note the specific language of Chandler, namely, the employer has the burden of production, not one of persuasion, which remains with the employee. Consequently, I would find for the Respondent and dismiss the petition.

Commissioner John W. Robertson FILED this 27 day of March, 1992, in Tallahassee, Florida.

Margaret A. Jones Clerk of the Commission

Copies Furnished to:

Joe Episcopo, Esquire Keith C. Tischler, Esquire David L. Swanson, Esquire

James E. Bradwell, DOAH Hearing Officer Harden King, FCHR Legal Advisor

Docket for Case No: 90-006943

Orders for Case No: 90-006943