STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH DAVIS,
Petitioner,
vs.
PINELLAS COUNTY SHERIFF'S OFFICE,
Respondent.
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) Case No. 03-0950
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RECOMMENDED ORDER
Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes, a formal hearing was held in this case, on May 16, 2003, in St. Petersburg, Florida, before Fred L. Buckine, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William M. Laubach, Esquire
Pinellas County Police Benevolent Association
14450 46th Street, North, Suite 115
Clearwater, Florida 33762
For Respondent: Keith C. Tischler, Esquire
Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
The issues for determination are whether Petitioner, Kenneth Davis, made sexually harassing statements and made body
contact with a female counselor so as to constitute sexual harassment and a hostile work environment, in violation of Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office, and, if so, what is the appropriate penalty.
PRELIMINARY STATEMENT
On March 10, 2003, Respondent, Sheriff Everett S. Rice, notified Petitioner, Detention Deputy Kenneth Davis, that the Administrative Review Board had determined that Petitioner had violated the Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office. As the result of the Administrative Review Board's determination, Respondent notified Petitioner that he was suspended ten days without pay and demoted from the rank of detention corporal to the rank of detention deputy. Petitioner denied the charges, contested the imposed penalty, and requested a formal hearing.
On March 19, 2003, Petitioner's notice of appeal from the above disciplinary action and request for a hearing was referred to the Division of Administrative Hearings.
On March 28, 2003, a Notice of Hearing, scheduling the final hearing for May 6, 2003, in St. Petersburg, Florida, was entered. On March 31, 2003, an Amended Notice of Hearing,
rescheduling the final hearing for May 1 and 2, 2003, was entered.
On April 15, 2003, an Order was entered granting a continuance and rescheduling the final hearing for May 16, 2003. On April 22, 2003, Respondent's Disclosure Pursuant to Section 120.57(1)(d), Florida Statutes, was filed.
On May 2, 2003, Respondent's Motion in Limine was filed, and on May 5, 2003, a (Joint) Pre-Hearing Stipulation was filed. On May 8, 2003, a telephonic case status conference was held.
The hearing was held on May 16, 2003. At the hearing, Petitioner testified on his own behalf and also presented the testimony of one witness, Detention Deputy Herman Hartfield, Petitioner's co-worker, and introduced one exhibit (PBA-A) into evidence. Respondent presented the testimony of five witnesses: Lori Atwater (sexual harassment complainant), an inmate counselor; Jacqueline Hobbs, program service supervisor; Detention Deputy Peggy Henderson, Petitioner's co-worker; Detention Deputy Linda Miller, Petitioner's co-worker; and Major Kirk Bruner, Detention and Correction Bureau commander and Petitioner's chain-of-command superior officer. Respondent introduced 15 exhibits (R-1 through R-15) that were accepted into evidence; Respondent's exhibits R-13 and R-14 were withdrawn. The parties submitted the Pinellas County Sheriff's
Office's Administrative Review Board Complaint Determination as a joint exhibit (J-1) that was accepted into evidence.
On May 22, 2003, a two-volume Transcript was filed.
On June 2, 2003, the parties filed a joint motion for an extension of time to submit proposed recommended orders, and by Order of the same date, the parties' motion was granted, extending the filing date until July 15, 2003, thereby waiving the time requirement for this Recommended Order. See Rule 28- 106.216, Florida Administrative Code.
Respondent and Petitioner filed proposed recommended orders and memoranda of law on July 14 and 16, 2003, respectively, and they have been considered by the undersigned in preparation of this Recommended Order. (All statutory references are to Florida Statutes (2003) unless otherwise stated.)
FINDINGS OF FACT
Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found:
Respondent, Sheriff Everett S. Rice (Sheriff), is a constitutional officer of the State of Florida, responsible for
providing law enforcement and correctional services within the geographic boundaries of Pinellas County, Florida.
Petitioner, Detention Deputy Kenneth Davis (Deputy Davis), is a 23-year employee with the Pinellas County Sheriff's Office, having spent his entire career as a detention officer. As a result of years of training and experience, Deputy Davis is intimately familiar with the Sheriff's policy regarding sexual harassment, detention policies, operations, procedures, and the priority of security applicable to detention deputies.
The evidence demonstrates that in the collective opinions of those detention deputies who worked longest with Deputy Davis, all agreed that his personality was that of one who "[was] loud and obnoxious--to pretty much everybody," "play[ed] around a lot," "never insulted anybody," and "[didn't] mean any harm."
At all times pertinent to this cause, Deputy Davis held the rank of detention corporal until the Sheriff reduced his rank to Deputy and removed him from his position of detention corporal on March 10, 2003. Deputy Davis' chain-of-command consisted of Major Kirk Brunner, Detention and Correction Bureau commander; Captain Nesbitt; Lieutenant Keith George; and Sergeant Buckingham. Deputy Davis did not have authority over Lori Atwater (Ms. Atwater), the complainant in this cause. He
was not in her chain-of-command nor was he one of her bosses in the sense that he could assign her tasks.
At all times pertinent to this cause, Deputy Davis worked in detention barrack C, North Division. Barrack C is a two-storied structure divided into B block and C block, with each cellblock divided into an upper level and lower level. Deputy Davis had four deputies under his supervision in cellblock C.
At all times pertinent to this cause, Control Deputy Salazar worked the control center at barrack C. The control deputy is stationed in a glassed enclosure with clear view of individuals desiring entrance into the waiting room of barrack C and with clear view of inmates desiring to leave the cellblock and enter the waiting room.
On or about March 4, 2002, Ms. Atwater, an African- American and a long-time resident of St. Petersburg, Florida, commenced employment with the Pinellas County Sheriff's Office as an inmate-counselor. Ms. Atwater has an Associate of Science degree in Computer Technology Engineering and a Bachelor of Science degree in Management Information Systems. Her inmate- counselor duties consisted of identifying inmates who had family, legal, and personal issues requiring her intervention. The Department of Children and Family Services (DCFS) employed Ms. Atwater for ten years before she began employment with the
Pinellas County Sheriff's Office. While employed with DCFS, she worked in food stamps, Medicaid, protective services, adoptions, and several community recruitment programs. DCFS also has a policy against sexual harassment.
The Sheriff has adopted Pinellas County Sheriff's Office General Order 3-4, which defines and prohibits sexual harassment. Pursuant to General Order 3-4, sexual harassment is defined as:
All unwelcome or unwanted advances; including sexual advances or unwanted sexual attention, whether between person(s) of the opposite or same sex. This includes, but is not limited to, leering, touching, patting, brushing against, hugging, kissing, fondling, any other similar physical contact, or quid pro quo arrangements (i.e., a situation in which an employee is forced to engage in unwelcomed sexual conduct in order to protect or advance his/her job.)
Unwelcome requests or demands for favors, including sexual favors. This consists of subtle or blatant expectations, pressures, or request for any type of favor, including sexual favor, including unwelcome requests for dates, whether or not the request is accompanied by an implied or stated promise of preferential treatment or negative consequences.
Inappropriate third party comments or one time comments made which do not constitute a hostile work environment, language not directed at the offended member, jokes (spoken, printed or drawn) that are not directed at the offended member or joint banter of a sexual or offensive nature in which the offended member may or may not be a party.
All employees of the Sheriff, including Deputy Davis and Ms. Atwater, received instructions regarding the Sheriff's Sexual Harassment Policy.
The evidence demonstrates that beginning in March of 2002 and continuing through the months of April and May 2002, Ms. Atwater noticed, without telling him to stop and without reporting her resulting complaint to her supervisor, that Lieutenant George would call her "Ms. Ashwood." At some unspecified time prior to March of 2002, Ms. Atwater concluded that the name "Ms. Ashwood" was offensive. Ms. Atwater based her conclusion on her interpretation and knowledge of the general reputation of a Ms. Ashwood (no first name given) within the African-American community of St. Petersburg. According to Ms. Atwater, Ms. Ashwood was known throughout the African- American community for engaging in sexual encounters with multiple partners.
As a direct result of her superior, Lieutenant George, continuously calling her Ms. Ashwood, a name she considered to be sexually offensive, Ms. Atwater chose not to report her sexual harassment complaint against Lieutenant George through the proper protocol. The record contains no evidence that
Ms. Atwater asked Lieutenant George what was his intended meaning by calling her Ms. Ashwood. The evidence demonstrates that Lieutenant George, having been involved in both the hiring
of Ms. Atwater as well as involved in her performance evaluation, knew her name to be Ms. Atwater.
Alleged statements made by Deputy Davis to Ms. Atwater in the cafeteria during a lunch period.
The evidence demonstrated that Ms. Atwater and Deputy Davis initially enjoyed a rather cordial relationship at work during the period of March through May 2002, at least by outward appearances. Deputy Davis and Ms. Atwater both attended read- off sessions; on occasions, they walked together from the read- off sessions back to barrack A; and on two separate occasions, they were seated at the same table in the compound's buffet- styled cafeteria. They did not have contact with each other beyond what was necessary in the performance of their respective duties. They did not have contact with each other outside the workplace.
On some unspecified date during lunch in the compound cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant George kept calling her Ms. Ashwood. According to Ms. Atwater, Deputy Davis came over to the table where she sat and she allegedly initiated the following conversation:
Atwater: I really don't appreciate that, him [Lieutenant George] calling me
Ms. Ashwood.
Davis: He's probably P-U-S-S-Y whipped and you probably remind him of her.
Atwater: He just alluded to--and used the term inside whore.
Atwater: What's an inside whore?
Davis: That's when you sleep with someone that makes Decisions for your career.
Atwater: If I ever get promoted around here it will not be because I've slept with anybody, but based on my own merits.
At the final hearing, Deputy Davis denied the allegations regarding the above statements attributed to him by Ms. Atwater. Thus, the evidence is irreconcilably in conflict as to whether Deputy Davis made those statements attributed to him with the intent of sexually harassing Ms. Atwater, and if the statements were, in fact, made, whether his answers were truthful responses to her question.
The compound cafeteria has several long tables seating six to eight persons and several shorter tables seating four to six persons. It is significant that not a single witness, from among others who were seated at the same table with Ms. Atwater and Deputy Davis in the cafeteria on that unspecified day, was called to corroborate the statements allegedly made by Deputy Davis to Ms. Atwater. With knowledge of the Sheriff's sexual harassment policy coupled with her prior knowledge of DCFS's similar sexual harassment policy, and having been highly offended by Deputy Davis' conversation, it is significant that
Ms. Atwater, whose counseling job included accurate record keeping, made no attempt to record this first incident with Deputy Davis resulting from repeated incidents with Lieutenant George. Additionally, Ms. Atwater chose not to follow protocol and report to her immediate supervisor her complaint of sexual harassment by a relatively new co-worker.
Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity, thus proving by a preponderance of the evidence that Deputy Davis made unwelcome or unwanted sexual comments or advances and/or unwelcome unwanted sexual demands, nor created a hostile work environment as Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what was said or not said by
Ms. Atwater or by Deputy Davis during the alleged conversation that took place on some unspecified date in the compound cafeteria.
Alleged intentional body contact by Deputy Davis with Ms. Atwater in the cafeteria buffet serving line.
Ms. Atwater further testified that on another unspecified day while she was in the cafeteria buffet serving line fixing her salad, she felt "a brazen--it felt maybe like
his [Deputy Davis] radio or something-it was hard--and then he went in my ear 'boo.' It made me jumpy and I made a squealing noise-because I didn't expect anything to braze in the back on my----." Continuing, Ms. Atwater testified that Lieutenant George came in the cafeteria at that time, and she asked him "why don't you tell your friend to just cut it out?" The Sheriff did not call Lieutenant George to testify. No other witness testified to corroborate Ms. Atwater's statements.
Deputy Davis denied this second allegation of intentionally making body contact with Ms. Atwater and speaking in her ear.
Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity and that Deputy Davis engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur on that unspecified date between Deputy Davis and Ms. Atwater in the buffet serving line in the compound cafeteria.
It is significant that Ms. Atwater, whose counseling job required accurate and detailed daily record keeping, made no record of Deputy Davis' second alleged sexual harassment of her person. With firsthand knowledge of the Sheriff's sexual
harassment policy plus her ten-year experience with a similar sexual harassment policy during her employment with DCFS,
Ms. Atwater chose again not to follow proper protocol. She chose not to properly report this second incident to her immediate supervisor. Her second decided refusal to report what she considered sexual harassment by the same co-worker is not a defense, if Deputy Davis was guilty of such conduct, and does not absolve him from liability. Having chosen for the second consecutive occasion not to report the alleged sexual harassment by Deputy Davis does present a significant impediment regarding Ms. Atwater's memory, recall, and credibility.
Alleged repeated harassing comments by Deputy Davis resulting from Ms. Atwater's frightened squealing.
Concluding, Ms. Atwater testified that "for months" after the undated cafeteria serving line incident, "every time" she would see Deputy Davis (minimum twice a week in barrack C) he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." According to her, these statements allegedly resulted from the cafeteria serving line incident and from a subsequent work related discussion and disagreement between Deputy Davis and Ms. Atwater regarding the form "62" (a form used by inmates requesting to see the counselor). Ms. Atwater, when confronted with what she considered a third but continuing sexual harassment by Deputy
Davis, again chose not to follow protocol and report this third incident to her supervisor. It is significant that according to Ms. Atwater, she was initially and had been continuously sexually offended by Lieutenant George calling her Ms. Ashwood. When she inquired of Deputy Davis why Lieutenant George called her Ms. Ashwood, she was again sexually offended by his alleged answer to her question. She turns then to Lieutenant George, who was continually sexual harassing her and (did not ask him to stop calling her Ms. Ashwood) asks his assistance (not to file a proper complaint) but to have Deputy Davis (whose answer to her question about Lieutenant George she considered sexual harassment) to "just knock it off."
Regarding her third alleged sexual harassment complaint against Deputy Davis (Ms. Atwater with knowledge that Lieutenant George and Deputy Davis were friends and she admittedly intended to take advantage of their friendship), she went to Lieutenant George, who (1) had continuously called her Ms. Ashwood; (2) was in her chain-of-command; and (3) was also in Deputy Davis' chain-of-command (but not file a complaint against Deputy Davis) and asked if he would "talk to his friend [Deputy Davis]--I don't want to make waves over this-I don't want to make a big to do-if you could talk to him--just have him knock it off." At the final hearing, Deputy Davis denied her third allegation that he would repeatedly come behind her and
say--"Ewwww, counselor," and "Counselor, I want to see you." It is significant that after months and three separate allegations of sexual harassment by Deputy Davis, Ms. Atwater chose not to follow protocol and make a sexual harassment complaint against Deputy Davis to Lieutenant George, who would have been obligated to initiate a formal investigation. She chose instead to ask a favor from one who had continuously called her the sexually harassing name of Ms. Ashwood.
The evidence is irreconcilably in conflict as to whether Deputy Davis continually made the alleged sexual and harassing comments to Ms. Atwater during an unspecified number of months. The Sheriff presented no witness to corroborate Ms. Atwater's allegations on this issue. Lieutenant George was not called to testify, leaving Ms. Atwater's hearsay testimony regarding this particular issue without corroboration. For the third time, Ms. Atwater chose to not follow protocol and report her third sexual harassment incident. The fact finder acknowledges that her third decided refusal to report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a third time not to report the alleged sexual harassment by Deputy Davis to her immediate supervisor does present a significant obstacle in the evaluation of
Ms. Atwater's credibility.
Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity that Deputy Davis for months engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur during unspecified months when Deputy Davis may have been in the presence of
Ms. Atwater.
Allegations that Deputy Davis intentionally delayed or caused delay of inmates desiring conference with Ms. Atwater.
Regarding her final allegation of sexual harassment by retaliation against Deputy Davis, Ms. Atwater recalled that on one occasion, Deputy Davis intentionally caused a "two-hour" delay in getting inmates on her list from their cells to the conference area where she awaited them. The purported intent of this alleged two-hour delay was to threaten or to produce a negative consequence regarding Ms. Atwater's performance of her duties.
I find that Ms. Atwater's August 9, 2002, memo to her supervisor, Deputy Armsheimer, purporting to be a chronology of events that occurred on August 8, 2002, conclusively demonstrates that Deputy Davis was not the cause, directly or
indirectly, for Ms. Atwater's two-hour delay in getting the two inmates she had requested.
The evidence demonstrates that Ms. Atwater gave her form "62" list (inmates to be pulled who had requested a conference with her) to the control deputy, Deputy Salazar, in barrack C and waited 40 minutes. Returning to the holding area and inquiring as to the whereabouts of her inmates, Deputy Davis and not Deputy Salazar informed Ms. Atwater that the top three inmates on her list were not there. Ms. Atwater asked Deputy Davis of the inmates' whereabouts, but he gave her no further explanation. Ms. Atwater thereafter called Deputy Hartfield, who is in her chain-of-command, to ask if he would look into the matter and Deputy Hartfield promised to get back to her.
Ms. Atwater waited for Deputy Hartfield's return call. After waiting an unspecified period of time and not receiving Deputy Hartfield's returned message, she called Deputy Hartfield a second time and was told that he had relayed his message to control (Deputy Salazar) about one and one-half hours ago. In that message, Deputy Hartfield explained that her first requested inmate (no name given) had been moved to maximum security and her second inmate (Brandon) was written up earlier that morning by him. In her August 9, 2002, memo to Deputy Armsheimer, Ms. Atwater wrote, "the conversation concluded with
me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago, I would have just left out of here and could have eaten lunch."
It is significant that Ms. Atwater authored her August 9, 2002, memorandum to Deputy Armsheimer, for the singular purpose of explaining the exact cause (and persons involved) of her two-hour plus wait for inmates who were not pulled for her. At the final hearing in May 2003, she
contradicts her August 9, 2002, written statements by testifying that Deputy Davis caused her a "two-hour" delay in pulling her inmates. This obvious contradiction is a severe detriment upon her credibility.
Ms. Atwater's memorandum to Sergeant Groff, dated October 30, 2002, was written to give a recount of her experiences with Deputy Davis during all times pertinent to this case. She began her memorandum with the statement: "[S]o for the whole story to be clear, I must tell you how we ended up here and start from the beginning." In her first sentence of the second paragraph appears the first conflict in the evidence of record. In that sentence, Ms. Atwater writes, "Shortly after starting to work here, I began to experience unpleasantness from Cpl. Kenneth Davis. His obnoxious gestures, comments and disposition could not be tolerated any longer." (This conclusion consisted of the three separate allegations against
Deputy Davis made herein above.) With this opportunity to formally complain of sexual harassment in the work place,
Ms. Atwater failed to include the fact that it was she who initially asked Deputy Davis why Lieutenant George called her the sexually offensive name of "Ms. Ashwood." Intentionally choosing to allege that Deputy Davis' answer to her question why Lieutenant George kept calling her "Ms. Ashwood" was the initial sexual harassment that created a hostile work place is contradictory to her testimony.
Continuing, Ms. Atwater wrote--"I did tell him that I felt he 'played too much,' and need[ed] to stop moaning and groaning behind me." Even though she recounted moaning and groaning, she specifically omitted her alleged verbatim statements made by Deputy Davis (Finding of Fact 12 hereinabove) when he answered her question "why Lieutenant George calls me Ms. Ashwood."
This is significant in that Ms. Atwater's testimony was that Deputy Davis' alleged verbatim statements when he answered her question were so "sexually harassing" that she was "immediately" offended the moment she heard them. Yet, she omits any mention that it was Lieutenant George continuously calling her "Ms. Ashwood" that initially and repeatedly offended her. The name Ashwood she considered had such a negative sexual reputation in the community that she was immediately offended
and sexually harassed when Lieutenant George first called her Ms. Ashwood and each time thereafter. She omits any mention that it was her inquiry of Deputy Davis, "why Lieutenant George [sexually harassing her] was calling her the offensive name of Ms. Ashwood" that produced the alleged response.
Based upon Ms. Atwater's acknowledgement contained in her October 30, 2002, memorandum to Sergeant Groff, I find that her allegations that Deputy Davis caused a delayed wait of two hours to get inmates pulled and, thus, "creat[ed] a hostile work environment" to be contrary to her August 9, 2002, memorandum to Sergeant Armsheimer, admitting that had she known her inmates were not in barrack C, she would have left and had lunch "one and one-half" hours prior. Ms. Atwater further admits in writing that from May of 2002 forward, she and Deputy Davis "barely" spoke to one another. If Ms. Atwater's memory is presumed to be accurate and she and Deputy Davis discontinued speaking to one another during the March through May 2002 period, it was not logical to conclude that Deputy Davis repeatedly and continually moaned and groaned in her ear for "months" thereafter (i.e. June, July, August, and October). For the fourth time, Ms. Atwater chose not to and did not report this fourth incident to her immediate supervisor at or near the time it occurred. Her sexual harassment complaint against Deputy Davis was filed after her October 2002 complaint was
filed against Lieutenant George. Her fourth decided refusal to immediately report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a fourth time not to report the initial alleged sexual harassment by Deputy Davis during the March through May period, when coupled with the contradiction between her testimony that Deputy Davis was the cause of a two-hour delay in pulling her inmates, and her memorandum wherein she acknowledges that her inmates had been written up by Sergeant Hartfield, presents a credibility obstacle.
Ms. Atwater makes no further mention of Deputy Davis in her October 30, 2002, memoranda, devoting the remainder to Lieutenant George. She recounts in detail their initial friendly relationship, turning to a cold and unfriendly relationship, the keeping-your-distance treatment, their many phone conversations at work, their lunch dates away from the work place, and their private phone calls when at home, ending on October 24, 2002, with an incident of kissing and Lieutenant George rubbing his groin against her buttocks and her resisting his advances. (See Joint Exhibit J-1.)
In her final paragraph, Ms. Atwater relates how, unbeknownst to Lieutenant George, she arranged for a three-way call between herself, Lieutenant George, and her uncle, a City
of St. Petersburg employee. She arranged the three-way call for the purpose of securing a witness to corroborate her statements regarding the Lieutenant George sexual harassment encounter.
Though her alleged initial sexual harassment was initiated by Deputy Davis and continued for months, Ms. Atwater made no similar attempt to corroborate her claims of sexual harassment against Deputy Davis. Knowing that Deputy Davis was not within her chain-of-command and not in a supervisory position over her, there was no logical reason for Ms. Atwater to fear promotions and job security. Ms. Atwater knew that filing a complaint against a lieutenant within her chain-of- command presented a greater risk than filing a complaint against Deputy Davis who was not in her chain-of-command. Her choosing not to record (or procure corroboration) the Deputy Davis incidents, when coupled with her delay of many months in reporting her compliant through proper channels because of fear of reprisal, rings hollow.
It was after the Administrative Review Board had begun an investigation of Ms. Atwater's October 2002 complaint of sexual harassment against Lieutenant George that the Sheriff initiated an investigation of Deputy Davis. Only after her egregious October 24, 2002, incident involving Lieutenant George did she file a subsequent and separate sexual harassment compliant against Deputy Davis.
In the absence of corroboration, Ms. Atwater's testimony of a single incident of intentional touching and her testimony of alleged verbatim statements made by Deputy Davis and his unequivocal denial presents a "she said-he said" dilemma. Neither party's testimony is inherently more credible than the other party's testimony. Contrary to the opinion of Major Brunner, who sat on the Administrative Review Board, that when the Administrative Review Board questioned Deputy Davis regarding those allegations, Deputy Davis was "in denial." This assumption and by implication presumed guilt, thereby lending credibility to Ms. Atwater's allegations, is a conclusion not based on fact and is contrary to the evidence adduced during the de novo proceeding. Ms. Atwater's testimony of incidents having occurred over a four-month or more period and the lack of time or specific dates coupled with the contradictions between her testimony during the final hearing and her August 9, 2002, memorandum to her supervisor, creates an unfathomable chasm in the evaluation of her credibility.
The Inspection Bureau of the Administrative Inspection Division investigated Ms. Atwater's complaint and submitted their investigative results to the Administrative Review Board, made up of various employees with the Pinellas County Sheriff's Office. The Administrative Review Board determined that Petitioner, Deputy Davis, had violated the Pinellas County
Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4: violation of provisions of the law or rules, regulations, and operating procedures of the Pinellas County Sheriff's Office.
The Administrative Review Board determined that Deputy Davis' conduct was a violation of the rules and regulations of the Pinellas County Sheriff's Office, Rules 3-1.1 (level five violation) and 5.16, relating to sexual harassment and discrimination as defined in the Sheriff's General Order 3-4.
The Administrative Review Board determined that Deputy Davis' available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office that allocates a point scale to various violations. The matrix provides that a level five offense, which includes sexual harassment, results in a 50- point assessment. Deputy Davis scored a total of 50 cumulative points with a discipline range of five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order.
After considering the evidence and available sanctions, the Sheriff notified Deputy Davis on March 10, 2003, that he was imposing a ten-day suspension without pay and demoting him from the rank of corporal to the rank of detention deputy.
After weighing all the evidence, including the Sheriff's evidentiary presentation of Ms. Atwater's testimony of verbal comments made and intentional body conduct allegedly engaged in by Deputy Davis, this fact finder finds the uncorroborated hearsay evidence insufficient to prove, by a preponderance of the evidence, the allegations that Deputy Davis made sexually harassing verbal comments to Ms. Atwater, and that he made intentional sexually harassing body contact with her, so as to create a hostile work environment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes, and Chapter 89-404, Section 8, Laws of Florida, as amended by Chapters 90-395, Section 8, Laws of Florida.
The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Respondent must prove the allegations in its complaint by a preponderance of the evidence.
The preponderance of evidence standard has been consistently applied in cases involving the termination of employment. See Dalem v. Department of Corrections, 720 So. 2d
575 (Fla. 4th DCA 1998). In addition, the District Court of
Appeals, First District, held that the imposition of discipline upon a career service employee requires proof by a preponderance of the evidence. Latham v. Florida Commission on Ethics, 694 So. 2d 83, n. (Fla. 1st DCA 1997); Department of Agriculture and Consumer Services v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995); Fitzpatrick v. City of Miami Beach, 328 So. 2d 578 (Fla. 3d DCA 1976). The appropriate standard of proof required is a preponderance of the evidence. In order to prevail, Respondent must prove by a preponderance of the evidence that Deputy Davis' conduct (alleged statements and actions) violated the rules, regulations, and operating procedures of the Pinellas County Sheriff's Office.
While Petitioner argues that the clear and convincing evidence standard is appropriate given the rationale expressed within In re: Rudy Maloy, DOAH Case No. 02-1231EC, the argument provides little assistance since that case involved an alleged violation by a public official of the Florida Ethics Code pursuant to Section 112.317(1)(a), Florida Statutes.
This case, however, involves Respondent seeking to discipline an employee for repeated episodes of verbal and physical sexual harassment. Moreover, while Petitioner is not directly within the State of Florida's Career Service System, he is similarly situated within the protected Classified Service System of the Pinellas County Sheriff's Office and has attained
permanent status as an employee. See Chapter 89-404, Laws of Florida.
Chapter 89-404, Section 6, Laws of Florida, authorizes Respondent to suspend, dismiss or demote classified employees for certain offenses. It provides in pertinent part the following:
Cause for suspension, dismissal or demotion shall include, but shall not be limited to: negligence, inefficiency, or inadequate job performance; inability to perform the assigned duties, incompetence, dishonesty, insubordination, violation of the provisions of law or the rules, regulations, and operating procedures of the Office of the Sheriff, conduct unbecoming to a public servant, misconduct, or proof and/or admitted use of illegal drugs.
The listing of causes for suspension, demotion, or dismissal in this section is not intended to be exclusive. The Sheriff, by department rule, may add to this list of causes for suspension, dismissal or demotions.
In addition, Chapter 89-404, Section 2, Laws of Florida, authorizes Respondent to adopt rules, regulations and policies that establish the standard of conduct for employees of the Pinellas County Sheriff’s Office.
Respondent's complaint alleges that Petitioner violated the Pinellas County Sheriff Office Civil Service Act and rules, regulations, and operating procedures of the Pinellas County Sheriff's Office by creating a hostile work environment and engaging in sexually harassing statements and body contact
with Ms. Atwater. Respondent did not prove by a preponderance of the evidence that Petitioner repeatedly engaged in inappropriate and unsolicited sexually harassing verbal comments to Ms. Atwater and did not prove Petitioner physically touched and/or made intentional, sexually intended contact with
Ms. Atwater's person. Therefore, Respondent did not meet its burden and did not prove by a preponderance of the evidence that Petitioner’s conduct (both verbal and physical) violated the rules, regulations, and operating procedures of the Pinellas County Sheriff's Office.1
Considering the competent and substantial evidence of record, Petitioner's ten-day suspension, without pay, and his demotion from the rank of detention corporal to the rank of detention deputy was inappropriately imposed by the Sheriff.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding that:
Petitioner did not commit the verbal and physical conduct alleged in the charging document and that there was no violation of the rules, regulations, and policies of the Pinellas County Sheriff's Office as alleged.
Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office was therefore inappropriate.
Petitioner's demotion from his previous rank of detention corporal to the rank of detention deputy was therefore inappropriate.
Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office be restored with full detention corporal's pay and benefits.
Petitioner be restored to the rank of detention corporal2 and given full duties and responsibilities as previously held.
DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida.
S
FRED L. BUCKINE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2003.
ENDNOTES
1/ Section 90.801(1)(c), Florida Statutes, "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted." Rule 28-106.213(3), Florida Administrative Code, limits the use of hearsay evidence supplementing or explaining other evidence, but such hearsay evidence shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in Chapter 90, Florida Statutes.
2/ Counsel for each party agreed to disagree on the issue of whether Deputy Davis' corporal rank was an assignment position (when one is assigned to a specific duty-position, the rank (in this case corporal) goes with the duty assignment) or a tested position (a position that required one to pass a test and be promoted to the position not withstanding duty assignment, i.e., corporal). Neither party proffered evidence on this issue.
The undersigned intentionally makes no finding of fact nor by the Recommendation imply a decision had been made regarding the issue of "Corporal rank as duty assignment position vs. Corporal rank as a tested position." After completing 23 years of service Deputy Davis earned and occupied both the rank of corporal and the position as detention corporal. The Sheriff inappropriately imposed punishment by taking from Deputy Davis both his corporal rank and his barrack C detention position. A just result demands that the Sheriff restore to Deputy Davis exactly what was taken from Deputy Davis. Therefore, full and just restoration shall include his prior rank (corporal) and his prior position (detention barrack C) at the Sheriff's office.
COPIES FURNISHED:
William M. Laubach, Esquire Pinellas County Police Benevolent
Association
14450 46th Street, North, Suite 115
Clearwater, Florida 33762
Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308
Jean H. Kwall, Esquire
Pinellas County Sheriff's Office Post Office Drawer 2500
Largo, Florida 33779-2500
B. Norris Rickey, Esquire Assistant County Attorney
315 Court Street Clearwater, Florida 33756
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 19, 2003 | Agency Miscellaneous | |
| Nov. 04, 2003 | Agency Final Order | |
| Aug. 20, 2003 | Recommended Order | Sheriff`s Office`s Administrative Review Board suspended, transferred, and reduced rank of deputy Petitioner for alleged sexual harassment of co-worker. Sheriff failed to carry burden of proof. Recommend Petitioner be restored to previous rank and duty. |
