STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCE CAMPBELL, )

)

Petitioner, )

)

v. ) CASE NO. 92-4503

) ALACHUA COUNTY DEPARTMENT OF CRIMINAL ) JUSTICE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 15, 1992, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Vince Campbell, Pro Se

Post Office Box 964 Alachua, FL 32615

For Respondent: Robert Ott, Litigation Attorney

Office of Alachua County Attorney Post Office Box 2877

Gainesville, FL 32602-2877 STATEMENT OF ISSUES

The ultimate issue is whether the Respondent, Alachua County Department of Criminal Justice Services (the County), engaged in an unlawful employment practice by discriminating against Petitioner, Vince Campbell (Campbell), on account of race.

PRELIMINARY STATEMENT

By telephone, Campbell requested a continuance on October 13, 1992. He was advised to discuss the request with the County and to file a written motion. No motion was filed. At the beginning of the hearing, Campbell objected to the matter going forward, but did not move for a continuance. The hearing went forward as noticed.

Campbell presented his own testimony and offered no exhibits. The County presented the testimony of Cynthia Cothran, Lisa Haefner, Donald L. Cochran, Otis D. Stover, William S. Krider, Charles L. King, Melda J. Williams, Gloria Vose-Peacock, Gary M. Brown, Stephen A. Garrahan, and Walter P. Byrd.

Respondent's Exhibits 4-16, 17a, 17b, 18-25, 27-32, 34, 35, 37, 38, and 41-43 were admitted in evidence.

The parties waived the filing of a transcript and of proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Vince Campbell was employed as a corrections officer for the Alachua County Department of Criminal Justice Services from 1985 until his termination on August 8, 1991. Numerous incidents led up to his termination.

   
   

2. During 1985-1987, Campbell had repeated problems with tardiness and absenteeism, for which he received numerous disciplinary actions including warnings and suspension at no pay.

   
   

3. On August 2, 1989, Campbell was arrested by the Alachua Police Department for multiple charges including resisting arrest with and without violence. Campbell was observed running two stop signs. When he was stopped, he became agitated and refused to give his name or driver's license. He resisted arrest and struggled with the officers. One officer was injured. At the police station, Campbell continued to struggle and kicked an officer in the stomach. Throughout this time, Campbell was exhibiting vast mood swings and was alternating among belligerence, laughing, crying, and making irrational threats, such as telling the officers that they would have to kill him before he would let himself be taken to the jail in which he worked.

   
   

4. After Campbell was released, he was advised that he could return to work pending resolution of the criminal charges. Nevertheless, Campbell failed to appear for work on August 3 or 4, 1989, and did not call in to advise that he would not be at work. He received a warning for his failure to come to work or call in.

   
   

5. On April 23, 1990, Campbell instigated an incident at work which involved his verbal abuse, pounding on a window, cursing and yelling at coworkers and finally publicly giving the finger and saying "fuck you" to a coworker. He received another warning for that incident.

   
   

6. Campbell received another warning and letter of reprimand on May 14, 1990, for an incident where his negligence allowed an inmate to receive money belonging to another inmate.

   
   

7. On May 5, 1990, Campbell was again arrested for resisting arrest, battery on a law enforcement officer and breach of the peace. This arrest occurred in Union County even though Campbell was on probation for the first criminal offenses and was not allowed to leave Alachua County without permission of his probation officer.

   
   

8. The Union County arrest involved an altercation which occurred at a hospital after Campbell had taken his brother there for treatment of injuries received in a melee at a local bar and dance hall. Campbell was cursing and yelling at the nurses. The Union County Sheriff, Jerry Whitehead, went to the scene and Campbell screamed and swore at the sheriff. When he was told to leave the hospital, he refused and he was placed under arrest. He resisted arrest and fought with Sheriff Whitehead and a deputy, causing injuries to the sheriff.

   
   

9. As a result of that incident, Campbell was suspended with pay until May 25, 1990, at which time he was suspended without pay pending resolution of the charges.

10. Sentencing occurred on July 8, 1991, and Campbell met with his superiors on July 11, 1991. Major Garrahan, Chief of Security, proposed termination on July 17, 1991, and held a pre-termination hearing on July 29, 1991. As a result of Garrahan's recommendation and having reviewed all the relevant information, the Department Director, Walter P. Byrd, terminated Campbell on August 8, 1991.

    
    

11. In addition to the incidents described above, Byrd also had information regarding other events involving Campbell. On one occasion, Campbell was at the firing range for routine in-service firearms instruction. While on the line with his firearms, he was displaying severe mood swings, including alternately laughing hysterically and crying and becoming angry when one of the instructor cautioned him about safety on the firing line. All firing had to be delayed while Campbell regained his composure. He had to lay his shotgun on the ground to wipe tears from his eyes.

    
    

12. On another occasion at the firing range, Campbell requested to speak with "Melda," a fellow officer. He was anxious, nervous, and crying. He told Melda that he was seeing officers hiding in the woods around his house and that they were after him. Campbell was referred to Employee Assistance for a review of his mental state and stability.

    
    

13. Byrd was also advised that Campbell's driver's license had been suspended on two occasions because of failure to pay traffic fines, but Campbell had not advised his employer that his license was suspended. Possession of a valid driver's license is one job requirement for a correctional officer.

    
    

14. Byrd considered the arrests and convictions, Garrahan's recommendation, the in-house incidents, Campbell's emotional stability and the danger to Campbell's safety and that of inmates. He was very concerned that the County may be exposed to liability for Campbell's actions and apparent volatility and uncontrolled outbursts, if Campbell remained employed by the department. Byrd did not believe that Campbell was fit for continued employment because he was not emotionally stable.

    
    

15. Byrd is black, as is Campbell. At no time was race a consideration in Campbell's termination.

    
    

16. Campbell alleges that two white male employees were reinstated with back pay despite similar criminal charges. However, Campbell presented no evidence to support these allegations. One of the others resigned rather than be terminated and the other was not shown to have had similar charges or to have been reemployed by the department.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

18. This action is brought pursuant to the Florida Human Rights Act of 1977, Section 760.01-.10, Florida Statutes. Specifically, Campbell is claiming that the County engaged in an unlawful employment practice by discriminating against him on account of race in its termination of his employment.

    
    

19. The applicable model of proof in such discrimination cases is that outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668

    (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L.Ed.2d 207 (1981). That model of proof is stated as follows:

    
    

    First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." . . .

    Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

    
    

    Burdine, supra, 450 U.S. at 252-3.

    
    

20. Here, Campbell has failed to establish a prima facie case of race discrimination. Such a showing requires more than a mere showing that he is black and he was terminated. Even if such a basic showing was all that was needed for a prima facie showing, the myriad of valid reasons for termination established by the County are clearly "legitimate, nondiscriminatory" reasons for the termination. Finally, no showing of pretext has been made.

    
    

21. Campbell has failed to prove his claim by a preponderance of the credible evidence. A petitioner can carry his burden of proof "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, supra, 450 U.S. at 256. Campbell was unable to carry his burden either directly or indirectly. Therefore, the charges of discrimination pursuant to Section 760.10(1)(a) should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing the Petition for Relief filed by Vince Campbell.

DONE and ENTERED this 4th day of November, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

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 4th day of November, 1992.

COPIES FURNISHED:

Robert M. Ott Litigation Attorney

Office of Alachua County Attorney Post Office Box 2877

Gainesville, FL 32602-2877

Vince Campbell

Post Office Box 964 Alachua, FL 32615

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32303-4149

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. Some agencies allow a larger period within 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.

Docket for Case No: 92-004503

Orders for Case No: 92-004503