The Issue The issues are whether Respondent, Flagler County School District (“School District”), subjected Petitioner to discrimination on the basis of her disability, in violation of section 760.10, Florida Statutes,1 and/or whether 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School District is an employer as that term is defined in section 760.02(7). Ms. Lancaster, born on April 12, 1980, began working as a bookkeeper for the School District’s Transportation Department on January 13, 2011. She resigned from her position on November 7, 2019. This case is complicated by the fact that only Petitioner’s allegation of discrimination on the basis of a disability is at issue. The FCHR separately investigated Petitioner’s earlier complaint regarding sexual harassment and discrimination on the basis of sex, as well as retaliation for complaining about the harassment. The FCHR was unable to make a reasonable cause determination within the allotted 180 days. The FCHR notified Petitioner of her litigation options as to the sex discrimination/sexual harassment complaint. Petitioner allowed the 35-day window to file for a DOAH proceeding to lapse, but as of the date of this Recommended Order still has time to file a complaint in the proper court. At the hearing in this case, a great deal of testimony was provided as to the particulars of the sexual harassment claim. Petitioner presents the sexual harassment claim and disability claim as intertwined issues, arguing that her mental/emotional disability was triggered by the sexual assault and exacerbated by the School District’s response. Therefore, findings of fact on the sexual harassment claim are necessary to reach the disability claim. However, any relief to be provided to Petitioner in this proceeding is limited to her disability and retaliation claims. Ms. Lancaster’s difficulties at work commenced when she was accosted sexually by a fellow employee, Emilio Viera, in May 2018. Ms. Lancaster testified that Mr. Viera, who was about 75 years old at the time, entered her office, closed the door, and forced himself on her. He attempted to kiss her but she turned away. Mr. Viera proceeded to kiss her neck and grope her breasts and buttocks. Ms. Lancaster was stunned by the attack but eventually managed to push Mr. Viera away and leave the office. Ms. Lancaster testified that on the following day, Mr. Viera chased her down in his car as they were each driving away from work. Ms. Lancaster stated that Mr. Viera sped past her then cut her off, forcing her to slam on her brakes. She nearly t-boned Mr. Viera’s vehicle. Once Ms. Lancaster stopped her car, Mr. Viera got out of his car and pounded on the window of her car. He was attempting to give something to Ms. Lancaster, who at length managed to maneuver her car around Mr. Viera’s and get away. Ms. Lancaster told her husband what had happened with Mr. Viera but did not report these incidents to anyone at the School District at the time they happened. Ms. Lancaster reported the incident to the Flagler County Sheriff’s Office on August 14, 2019, more than a year after it happened. The Sheriff’s Office Incident Report states that Ms. Lancaster reported that, shortly after these incidents, Transportation Department employees were relocated while a mold problem in their unit was addressed. She and Mr. Viera worked at separate locations during this time. At the hearing, Ms. Lancaster was not questioned as to the reason why she and Mr. Viera were separated at work. It is undisputed that Mr. Viera left her alone during the separation. In May 2019, the employees were moved back into their home unit. Ms. Lancaster stated that Mr. Viera began coming around again. He noticed a tattoo on her back and made suggestive comments about it. He followed her into her office. Ms. Lancaster testified that at this time she reached out to Andy West, the Director of the Transportation Department. She told him that Mr. Viera was making her uncomfortable. Mr. West assured her that he would take care of the situation. Mr. West told Ms. Lancaster that Mr. Viera would be instructed to come to Mr. West if he had any business in the office and to leave Ms. Lancaster alone.2 Ms. Lancaster testified that either Mr. West did not follow through on his assurances or Mr. Viera chose to ignore Mr. West’s instruction. On July 16, 2019, Mr. Viera came into Ms. Lancaster’s office when no one else was around. Ms. Lancaster did not describe what Mr. Viera did or said while in her office, aside from winking at her, but she testified that his presence caused her to enter a “trauma state.” Ms. Lancaster testified that, after her troubles with Mr. Viera began, she had taken to carrying a pocket knife for protection. When Mr. Viera left her office on July 16, 2019, Ms. Lancaster turned the knife on herself. She cut her wrists. She then went to a coworker, Geri Drayton, and asked for help. Ms. Drayton called the police. Ms. Lancaster was involuntarily detained under the Baker Act and placed in the Palm Point Behavioral Health hospital. She was hospitalized until July 22, 2019. 2 Counsel for the School District attempted to cast doubt on Ms. Lancaster’s testimony by noting that there were no documents to support her story that she went to Mr. West for help. Counsel also pointedly asked Ms. Lancaster why she did not call Mr. West as a witness to support her testimony. However, Ms. Lancaster offered credible testimony, under oath, that she went to Mr. West, told him what was going on with Mr. Viera, and requested Mr. West’s protection. If the School District wished to dispute Ms. Lancaster’s credible testimony, it could have called Mr. West as its own witness. The School District chose not to do so. Ms. Lancaster’s testimony on this point is credited. On July 24, 2019, Ms. Lancaster’s physician, Leslie Williams, wrote the following letter, addressed “To Whom It May Concern” and sent to the School District: Mrs. Lancaster is a patient of mine who has experienced [an] acute episode of chronic condition, requiring hospitalization from 7/16/19 – 7/22/19. She is taking medication as prescribed but is not yet cleared for return to work. She will be evaluated by a specialist on 8/1/19 and further decision regarding return to work will be determine [sic]. Please excuse patient from work until cleared. The letter did not further specify Ms. Lancaster’s “chronic condition.” In response to the letter, the School District placed Ms. Lancaster on leave pursuant to the Family and Medical Leave Act. Ms. Lancaster testified that on July 25, 2019, she met with Mr. West and Ben Osypian, who at that time was the Director of Human Resources (“HR”) for the School District. The ostensible subject of the meeting was Ms. Lancaster’s return to work. Mr. Osypian advised Ms. Lancaster to fill out a complaint form about the incidents that led to her hospitalization. Ms. Lancaster submitted a School District complaint form on August 13, 2019. She wrote that her complaint was “bullying, sexual harassment, and hostile work environment” that “has led to me unable [sic] to return to work at moment [sic] and has caused severe depression.” In an email dated August 14, 2019, Mr. Osypian advised Ms. Lancaster that her complaint needed to be more specific, including the names of the persons about whom she was complaining and the dates, times, and details of what happened. Ms. Lancaster responded that she was not comfortable putting the details on paper and would provide the details at an in-person meeting with Mr. Osypian. Ms. Lancaster testified that Mr. Osypian never responded. After she did not hear back from Mr. Osypian, Ms. Lancaster met with her union representative, Lakisha Ayers-White, a vice president of the Flagler Educational Support Personnel Association (“FESPA”). On August 16, 2019, Ms. Ayers-White wrote the following letter on behalf of Ms. Lancaster to Earl Johnson, a School District administrator: I am writing to you on behalf of Mrs. Laura Lancaster, a Flagler County employee and FESPA member. On June 27, 2019, Mrs. Lancaster notified Mr. West, Director of Transportation, that a problem had developed within her worksite. The problem was that information vital to processing payroll was not being submitted to her. The established procedure was for coworkers to submit all necessary paperwork every Monday by 9:30 a.m. On July 26, 2019, Brun Hudson, President of FESPA, and myself were meeting with Mr. West regarding other issues. At the end of that meeting we asked Mr. West what action he would take to rectify the problems Mrs. Lancaster had brought to his attention. I shared copies of several emails requesting assistance to resolve the issues. Mr. West responded that he would let us know what he would do. To date, we have not heard from Mr. West what action he plans to take to rectify the situation. The hostility in the office has persisted and escalated to the point where Mrs. Lancaster was forced to take leave from work. Mrs. Lancaster is currently receiving assistance to better handle stress and trauma. Additionally, Mrs. Lancaster has sought an injunction to protect her from coworker, Emilio Viera. She had informed Mr. West of an incident that previously occurred at work involving Mr. Viera and a more recent interaction that have left Mrs. Lancaster feeling unsafe. The leadership of FESPA feels that we have given Mr. West ample time to rectify the procedural problems that are impacting Mrs. Lancaster’s ability to complete her work in a timely and efficient manner. A safe and healthy environment is essential not only to Mrs. Lancaster’s wellbeing, but also to her ability to perform her duties as an employee of Flagler County Schools. Mrs. Lancaster desires to return to work as soon as possible but cannot return if the problems she has identified persist. Mrs. Lancaster filed a complaint on August 13, 2019. She received a response from Mr. Osypian asking for more information. She is happy to comply with his request but replied to him that she would prefer to supply the details at a face-to-face meeting. I am requesting to schedule a meeting to find an appropriate resolution and return Mrs. Lancaster to work. Please contact me at your earliest convenience to schedule a date and time for us to meet and resolve these issues. Ms. Ayers-White’s letter points to a discrepancy in Ms. Lancaster’s narrative of events. In her testimony, Ms. Lancaster exclusively focused on Mr. Viera as the source of her distress at work and cause of her hospitalization. In fact, Ms. Lancaster was also experiencing some sort of conflict with other employees in the Transportation Department involving untimely submission of payroll information. Ms. Lancaster did not testify as to the specifics of this conflict, aside from an allegation that these employees were bullying her. The documentary evidence sheds no more light than that provided by Ms. Ayers-White’s letter. However, it is notable that Ms. Ayers-White’s letter attributes Ms. Lancaster’s absence from work and need for mental health counseling primarily to this payroll-related conflict, not to the incidents with Mr. Viera. Ms. Ayers-White testified that she visited Ms. Lancaster in the hospital and that Ms. Lancaster made it clear that Mr. Viera was the cause of her hospitalization. She was not questioned as to the apparent contradiction between her testimony and the August 16, 2019, letter. Ms. Lancaster testified that she had no further response from the School District before August 22, 2019, when the Circuit Court in Flagler County entered a Final Judgment of Injunction for Protection Against Stalking against Mr. Viera. The injunction prohibited Mr. Viera from coming within 500 feet of Ms. Lancaster’s residence or workplace. The injunction allowed Mr. Viera to be present outside of the work building to the extent necessary to perform his own duties as a school bus aide, but it forbade him from contact with Ms. Lancaster. Ms. Lancaster testified that she agreed to the terms of the injunction at the court hearing, which Mr. Viera also attended. It is undisputed that Mr. Viera had no further contact with Ms. Lancaster after the injunction was issued. On August 27, 2019, a meeting was convened to discuss the terms of Ms. Lancaster’s return to work. Present at the meeting were Ms. Lancaster and her husband, Julian Lancaster; Mr. Johnson; Ms. Ayers-White; School District General Counsel Kristy Gavin; and Tammy Whittaker, another School District employee. It was agreed by all present at the meeting, including Ms. Lancaster and her union representative, that the School District would move Ms. Lancaster away from the main building to the Transportation Department’s satellite location at Matanzas High School, to protect her from contact with Mr. Viera and the employees she had accused of bullying her. At the time of the meeting, Mr. Viera was out of work indefinitely for medical reasons. Both of the Lancasters testified that the tone of the meeting was that the School District had accumulated evidence sufficient to ensure Mr. Viera would not be a problem when he returned. They understood that Ms. Lancaster’s assignment to the Matanzas office would be temporary, until Mr. Viera returned to work and the School District could make a final decision as to his employment. Ms. Gavin testified that there was no discussion as to whether the assignment to Matanzas was temporary. Ms. Gavin stated that the move to Matanzas had more to do with the bullying coworkers than with Mr. Viera, who was subject to an injunction to stay away from Ms. Lancaster. Ms. Gavin testified that Ms. Lancaster said that the coworkers were yelling at her and trying to sabotage her work. The conversation was about making Ms. Lancaster feel comfortable while she and her coworkers worked through their issues. The Matanzas assignment was temporary “until [Ms. Lancaster] had a comfort level of returning to be with [her] coworkers.” Ms. Gavin testified that Ms. Lancaster was asked if she would be able to perform her job duties from the Matanzas location and what could be done to facilitate her work. Ms. Lancaster assured the group that she could do her job from Matanzas. The School District established new timelines for the submission of payroll items to Ms. Lancaster to ensure that she could do her work in a timely manner. Ms. Gavin testified that most of the discussion at the August 27 meeting was an airing of Ms. Lancaster’s concerns about her coworkers. Mr. Viera was discussed only briefly. Ms. Lancaster told the group that she had a physician’s appointment on September 3, 2019, and believed that she would be released to return to work at that time. Ms. Gavin testified that in all of her discussions with Ms. Lancaster, nothing about a disability ever came up. Ms. Gavin stated that the School District provided Ms. Lancaster with information about its Employee Assistance Program (“EAP”) and was aware that she availed herself of EAP counseling services, but was not made aware of any specific disability claimed by Ms. Lancaster. Due to an impending hurricane, Ms. Lancaster’s physician appointment was moved to September 9, 2019. On that date, Ms. Lancaster’s examining nurse practitioner, Irene Talarico, wrote that Ms. Lancaster “may return to work effective today with no restrictions.” On September 13, 2019, Mr. Viera returned to work. On September 18, 2019, Ms. Lancaster sent an email to Ms. Gavin and Mr. Johnson asking whether Mr. Viera’s return meant that her assignment to Matanzas was permanent. On October 1, 2019, Ms. Gavin responded, “No, as we discussed Mr. Viera will be reminded of the injunction that is in place and that he is not to go into the building and/or have any direct communication with you.” In connection with this email exchange, Ms. Gavin testified that she was involved in this process only because the School District was trying to fill the position of Director of HR. Mr. Osypian had left the position and the new Director, Jewel Johnson, was just coming on to the job. Ms. Gavin was attempting to transition all HR-related issues to Ms. Johnson at the time Ms. Lancaster inquired about the import of Mr. Viera’s return. About an hour after receiving Ms. Gavin’s response, Ms. Lancaster replied as follows: I am sorry I am really confused. The last discussion we had about this situation and Emilio Viera is that I would come up to [Matanzas] temporarily until he return [sic] from leave so HR could have a formal meeting with him. I am still waiting to hear what that outcome is as I have not got one. I would like to know what the district is doing in regards to Emilio Viera actions [sic] towards me that happen at work. The injunction was something I had to file to protect myself to make sure this man didn’t hurt me again not only at work but outside of work. Please let me know. Three days later, on October 4, 2019, Ms. Gavin responded, “I have spoken to HR regarding this and they should be getting back with you regarding this matter.” Ms. Gavin testified that at this time, Ms. Johnson was trying to finalize the investigation into the matter between Mr. Viera and Ms. Lancaster. On October 7, 2019, Ms. Johnson sent the following email to Ms. Lancaster: Please excuse my delayed response to your written statement. Dr. Johnson did submit those to my office for follow up on the day of the Transportation Department Meeting. I am new to the details of your case; would you by chance be able to provide me with the names of witnesses to any of the episodes outlined in your statement? Email me back or call my office with that information. I know you currently have a temporary “safety- type” plan. Once the final outcome is made I will need to speak with you about next steps and transition options. I can come to your location to make it easier if you prefer. I’ll be back in touch with that date and please let me know if there are any additional witnesses that you can provide. This email highlights a complaint Ms. Lancaster made about the School District’s response to her complaint about Mr. Viera. Ms. Johnson appeared to be starting her inquiry from scratch in October, despite the fact that the complaint was submitted on August 13 and a meeting had been convened on August 27 that gave Ms. Lancaster the impression that an investigation of Mr. Viera was underway. Ms. Lancaster also pointed to the fact that on September 19, 2019, Mr. West had contacted her and asked for a written statement. She asked him what had happened to the statement she had already submitted. Mr. West answered that he did not have a statement. Ms. Lancaster testified that on October 18, 2019, Mr. West came into her office with a big smile on his face and told her that Mr. Viera would be allowed to keep his job. She was very upset and asked for details about the investigation and how the School District came to that decision. In a letter to Ms. Lancaster dated October 19, 2019, Ms. Johnson provided the School District’s response to Ms. Lancaster’s complaint: This is in response to the formal Complaint Form you submitted on August 13, 2019 concerning: Alleged bullying. Sexual harassment allegations. Hostile work environment. The following outlines the District’s response to the issues listed above: Alleged bullying. The District has conducted several individual meetings with transportation staff members to address the issues related to bullying and/or unprofessional behavior within the office. In addition, on September 24, 2019 a group workshop to address staff concerns of professionalism (or lack thereof) as well as address standard operating procedures to perform various work assignments was held with the entire office staff. As a result, the SOPs were updated and new processes put in place to ensure that all team members have access and receive the information required to perform their job, as well as working cooperatively with one another. Electronic drop boxes were established to ensure this happens. Sexual harassment allegations. The one year old allegation of sexual harassment was investigated and while the claim for sexual harassment did not meet the definition required for a finding of sexual harassment, the alleged actions were found to be inappropriate workplace behaviors. Thus, he was issued consequences that follow progressive discipline and given verbal and written directives to cease all contact with you. Hostile work environment. It is my understanding that, while Mr. Viera remains in the employ of the School District you would prefer to be permitted to work at a different location than the main transportation office, thereby affording you the ability to know you will not come into contact with him. To this end, to maintain a healthy and safe work environment for you the Matanzas High School location may remain your worksite. Per your request information for our Employee Assistance Program (EAP) is attached. Two of the guiding principles of Flagler County Schools are trust and respect for all and a commitment to individual needs. The complaint process, and all of its components, helps to ensure that our employees have this opportunity. If you have any questions or continued concerns regarding this matter do not hesitate to contact my office. The School District’s Policy Manual Rule 662 defines “sexual harassment” as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual’s education). submission to or rejection of such conduct by an individual is used as the basis for an employment or employment decisions [sic] affecting that individual; or such conduct substantially interferes with an employee’s work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one’s employment. Ms. Lancaster was astounded that the School District’s conclusion that Mr. Viera’s conduct did not meet its definition of “sexual harassment.” Mr. Viera had admitted to the acts alleged by Ms. Lancaster, his only defense being that he believed that he was responding to her “signals.” Ms. Lancaster’s confusion was compounded when she learned of the contents of the following disciplinary letter that Ms. Johnson sent to Mr. Viera on October 17, 2019: This correspondence serves as written reprimand for your inappropriate actions in the workplace. During our investigation and from your own admittance intimate actions (hugging, kissing, touching) took place in your work station with another Flagler County School employee on or about May 10, 2018. Such behavior violates School Board Rule 662(3) which defines inappropriate touching in the definition of sexual harassment. It is the expectation of the District to maintain safe, productive environments where all employees can serve the needs of our students. Any further actions of this nature may result in further disciplinary action up to and including termination. Should you have any questions or require any assistance do not hesitate to contact me or your Director, Andy West. The School District provided no explanation for the contradictory letters sent to Mr. Viera and then two days later to Ms. Lancaster, both written by the School District’s Director of HR. Ms. Lancaster questioned not just the apparent duplicity of the letters but the School District’s settling on the weak response of a reprimand for Mr. Viera’s actions. At the hearing, Ms. Gavin attempted to rationalize the School District’s actions. She first argued that the aspects of Ms. Lancaster’s complaint regarding the unwanted kissing and touching by Mr. Viera in 2018 were made outside the 60-day window provided by Policy Manual Rule 649 for complaints involving harassment or discrimination. Ms. Gavin stated that the only incidents within the allowable scope of rule 649 were Mr. Viera’s 2019 acts of commenting on Ms. Lancaster’s tattoo and entering her office prior to her cutting her wrists, hence the relatively mild disciplinary action. Ms. Gavin’s explanation is not satisfactory because it fails to explain why the reprimand letter to Mr. Viera expressly mentions the acts he committed in 2018, “hugging, kissing, touching,” and does not mention the 2019 acts. Under Ms. Gavin’s reading of rule 649, the 2018 acts should have been off limits for disciplinary action against Mr. Viera. However, they were considered and apparently formed the basis for the action taken by the School District. Second, Ms. Gavin testified that the School District’s collective bargaining agreement states that “if it goes beyond 18 months it cannot be considered as a part of the disciplinary process because it’s too old and it’s deemed they’re given a clean slate.” The “18 months” statement is related to Ms. Gavin’s insistence that the incidents of kissing and groping occurred in 2017, not 2018. Ms. Gavin based this testimony on her recollection that the mold remediation project in the Transportation Department was completed in November 2017. The Sheriff’s Office Incident Report stated that, after the kissing and groping incident, Ms. Lancaster and Mr. Viera were separated at work due to the mold problem. The Sheriff’s Office Incident Report is hearsay that was not confirmed at hearing by Ms. Lancaster’s sworn testimony. When Ms. Lancaster made her report to the Sheriff’s Office on August 14, 2019, she was less than a month removed from cutting her own wrists and being involuntarily committed under the Baker Act. She could have been mistaken as to the reason for the separation. However, the credible documentary evidence and Ms. Lancaster’s testimony all place the date of the initial incidents with Mr. Viera in May 2018. Ms. Gavin’s seizing on the detail of the mold remediation to excuse the School District’s disciplinary slap on the wrist to Mr. Viera cannot be credited. It is not only contrary to the evidence, it lacks internal logic. By Ms. Gavin’s own testimony, incidents more than 18 months old cannot be considered in the disciplinary process. However, Ms. Johnson’s disciplinary letter to Mr. Viera references only these supposedly stale incidents as grounds for the reprimand. Even on its own terms, Ms. Gavin’s argument fails. Finally, Ms. Gavin noted that, even if Ms. Lancaster had timely filed her complaint against Mr. Viera, the School District’s progressive discipline policy would in all likelihood have led to his referral for counseling and possibly a suspension without pay. She added that if the School District had recommended termination, the union would have filed a grievance protesting that the collective bargaining agreement was not being followed. This explanation is also unsatisfactory. Notwithstanding the progressive discipline policy, Policy Manual Rule 662 prohibiting sexual harassment provides that a substantiated charge against an employee may result in suspension or termination. The union may or may not have grieved the decision, and may or may not have succeeded in the grievance proceeding, but the School District had ample options under its rules to dismiss Mr. Viera. Instead, however, the School District decided that Mr. Viera’s admitted sexual assault did not merit discipline more severe than a reprimand. Ms. Gavin’s effort to hide this decision behind the cloak of progressive discipline and/or trepidation about a union grievance is not credible or worthy of merit. Having found Ms. Gavin’s explanations implausible, the undersigned is constrained to observe that the purpose of this proceeding is not to second- guess the School District’s decision as to Mr. Viera’s discipline. However, the School District’s contradictory statements in the letters to Ms. Lancaster and Mr. Viera, coupled with the mere reprimand for what Ms. Lancaster believed to merit much more severe discipline, had a demonstrable impact on Ms. Lancaster and partly led to her resignation. Thus, some discussion as to the School District’s explanation for its actions is merited. Ms. Lancaster testified that after receiving the October 19, 2019, letter from Ms. Johnson, her feelings of isolation and depression deepened. She felt herself trapped alone at the Matanzas office, separated from her colleagues in the Transportation Department. Now that Mr. Viera was back at work and still assigned to the main office, she believed her assignment to the Matanzas office would be permanent. She was unable to attend department meetings and events. The Transportation Department held a cookout to which she was not invited. Ms. Lancaster could not understand why the School District did not reassign Mr. Viera so that she could return to work with her colleagues. She felt that she was being punished for filing a complaint. Further, Ms. Lancaster felt that she was unable to adequately perform her job from the Matanzas office. She could not be in direct contact with department employees, who found it more difficult to submit their paperwork to her in a timely fashion. Ms. Lancaster was receiving documents late, which in turn caused her to turn in the payroll data late. She stated that she was getting complaints from fellow employees. Ms. Lancaster testified that it made no sense that the only “accommodation” that the School District was willing to make for her mental disability was to isolate her at Matanzas, her only other choice being to return to the place where her attacker worked and where her only protection from him was a piece of paper, i.e., the injunction. Ms. Lancaster produced a School District Official Grievance Form (“Official Grievance Form”) that she signed and dated on October 25, 2019. On the form, she stated that she wished to grieve the result of the investigation memorialized in Ms. Johnson’s letter of October 19, 2019. As to the “specific relief sought,” Ms. Lancaster wrote: Mrs. Lancaster wants to return to her office in Transportation confident that she will be safe; To be an active member of the Transportation Department, free to attend department meetings and events; 3) Desires to rectify the perception and her sense of being punished for filing the complaint. The form was signed only by Ms. Lancaster. The space provided for the signature of a School District administrator was blank. The School District denied ever receiving this Official Grievance Form. Ms. Lancaster testified that the filing of the form led to a meeting between her, Florida Education Association union representative Blanca Sotelo, and Ms. Johnson on or about November 1, 2019. Ms. Lancaster produced contemporaneous emails between her and Ms. Sotelo discussing the contents and filing of the grievance, including editorial comments by Ms. Sotelo about a draft of the form completed by Ms. Lancaster. Whether the form was never submitted to the School District or whether Ms. Johnson received and misplaced it, the School District does not deny that the November 1, 2019, meeting occurred. Subsequent to the meeting, Ms. Johnson sent the following email to Ms. Lancaster and Ms. Sotelo: Thank you for coming in today to follow up with me. Please be advised of the following: Moving forward more problem solving will be used if/when problems arise because of Ms. Lancaster’s separated workstation. In regard to the most recent situation with another employee’s phone, Ms. Lancaster’s extension will be transferred over to the MHS Transportation Center. In addition, each employee should route their calls when away from their desk for any extended period of time so that the line is covered. Cooperation will be given to Ms. Lancaster’s [sic] while participating in counseling sessions (i.e., in the event she needs to leave early or come in late). The details were not specified during our talk today but the following should continue to be followed to avoid any confusion between Ms. Lancaster and Mr. West. I understand from Mr. West that Ms. Lancaster already does the following when she needs to leave the office: Advance notice, 3-5 days, should be given to the Supervisor so that planning and coverage (if needed) can be arranged. up to 30 min window of time is allowed for this. Anything over the allotted time will require a leave form. Email notice to the Supervisor once in the office or when leaving the office for these sessions. Thank you again and don’t hesitate to contact my office if you have any other concerns. The conciliatory tone of Ms. Johnson’s email does not jibe with Ms. Lancaster’s recollection of the November 1, 2019, meeting and casts further doubt on Ms. Lancaster’s memory that Ms. Johnson was in possession of the Official Grievance Form. Ms. Lancaster testified that Ms. Johnson advised her to drop her grievance. Ms. Lancaster stated that Ms. Johnson believed it would do no good for Ms. Lancaster to pursue it any farther and told Ms. Lancaster that the School District administration would support her view. Ms. Lancaster testified that she felt “like I hit a brick wall.” She broke down in Ms. Johnson’s office. She cried and said, “I guess I give up.” Neither of the other participants at the meeting testified to confirm or contradict Ms. Lancaster’s version of the meeting. Ms. Lancaster was a generally credible witness, but the contrast between her testimony about the meeting and Ms. Johnson’s subsequent email causes the undersigned to question whether Ms. Lancaster’s subjective emotional response to events reflected the objective reality of the meeting. On November 7, 2019, Ms. Lancaster sent the following email to Ms. Johnson: Due to the emotional and mental damage that has been caused from flagler county schools [sic] for reporting a crime that was committed against me and the lack of care and concern I received from administrators thus feeling as being punished for someone else’s wrongdoing, I no longer will be able to continue my employment with the school system. On the same date, Ms. Johnson replied, “Thank you for letting me know, I’m sorry to hear that you feel this way. I will process your resignation effective the date of this email.” The facts found above demonstrate that the School District responded poorly to Ms. Lancaster’s complaints about Mr. Viera. Ms. Lancaster went to her supervisor, Andy West, for help in May 2019 after Mr. Viera recommenced his harassment of her. Mr. West took no effective action. Based on the totality of the evidence, it appears probable that Mr. West did not even bother to report the matter to anyone outside the Transportation Department. Mr. Viera continued to stalk Ms. Lancaster, leading to Ms. Lancaster cutting her wrists and being hospitalized under the Baker Act. Ms. Lancaster filed a complaint against Mr. Viera on August 13, 2019. The School District produced no evidence that Ms. Lancaster’s complaint was formally investigated. It appears that Ms. Gavin spoke to some witnesses without putting anything in writing, then handed the matter off to the new Director of HR, Ms. Johnson, who seems to have restarted the investigation from scratch, asking Ms. Lancaster on October 7, 2019, for the names of witnesses. Ms. Johnson’s investigation also resulted in no written witness statements and no written record. The result of the investigation was an inexplicable reprimand of Mr. Viera. However, as noted at the outset, this case is not about Ms. Lancaster’s complaint of sexual harassment and discrimination on the basis of sex, which was the basis for her separate sexual harassment claim. This case concerns Ms. Lancaster’s allegation that the School District discriminated against her on the basis of her mental disability. The evidence produced at the hearing does not support that allegation. The first and ultimately insuperable problem with Ms. Lancaster’s complaint is that she never made the School District, or anyone outside her family, aware of her claimed disability while she was employed there. In a letter dated September 9, 2019, Ms. Lancaster’s medical provider cleared her to return to work “with no restrictions.” Even at the hearing, Ms. Lancaster did not precisely describe her diagnosis.3 Ms. Gavin credibly testified that in her many conversations with Ms. Lancaster, the issue of a disability was never raised.4 Ms. Ayers-White—who was Ms. Lancaster’s union representative, who visited her in the hospital after she was Baker Acted, and who witnessed the injunction hearing for Mr. Viera—testified that she had no idea Ms. Lancaster was claiming a disability until she read her FCHR petition. Geri Drayton, the coworker who phoned the police after Ms. Lancaster cut her wrists, testified that she never knew about a disability and did not recall Ms. Lancaster asking for any accommodations. School District employee Tina Hutto, testifying on behalf of Ms. Lancaster, stated that she never knew about Ms. Lancaster having a disability and did not recall Ms. Lancaster ever telling her that she was having difficulty performing her job. 3 Ms. Lancaster offered a document in which she described “depression and anxiety and bipolar 1 and PTSD” that she said was diagnosed in 2017. However, this document was an email that she wrote and sent to an FCHR investigator on February 17, 2020, well after she resigned from her position. The undersigned did not admit this document because it had no bearing on the School District’s knowledge of her claimed disability during her employment. 4 It is noted that, despite rejecting Ms. Gavin’s attempts to justify the contradictions between the School District’s outcome letters to Ms. Lancaster and Mr. Viera, the undersigned found Ms. Gavin to be a generally credible fact witness. Though it did not discipline Mr. Viera to Ms. Lancaster’s satisfaction, the School District does appear to have taken seriously her trauma and the need to make her feel safe at work. Though Ms. Lancaster later bridled against it, the transfer to Matanzas was ordered with the agreement of all involved in order to ensure Ms. Lancaster’s safety, not only from Mr. Viera but from the coworkers she had accused of bullying her. The School District provided her with EAP information and arranged for her to leave work early or arrive late to get to counseling appointments. The documentary evidence established that until Ms. Lancaster obtained the injunction against Mr. Viera on August 22, 2019, the School District (with the possible exception of Mr. West) was unaware of the gravity of the situation with Mr. Viera. The School District was operating under the assumption that Ms. Lancaster’s major concern was the bullying and obstruction by other employees, and that separating Ms. Lancaster from these employees was the safest option for all concerned. Ms. Lancaster and her union representative, Ms. Ayers-White, agreed to the separation. At the hearing, Ms. Ayers-White was asked whether it made sense for Ms. Lancaster to come back to the main office. Ms. Ayers-White answered, “I thought she was fine” at Matanzas. Ms. Gavin credibly testified as to the School District’s consistent provision of accommodations for disabled employees. The School District consults with the employee’s physician, providing a job description to allow the doctor to assess the employee’s ability to perform and to recommend reasonable accommodations. Ms. Gavin noted one instance in which the School District changed the ceiling tiles in a classroom and provided a microphone to accommodate a teacher with vocal problems. There is no reason to assume that the School District would have refused to at least investigate accommodations had it known Ms. Lancaster was claiming a disability. Further, other than expressing her own concerns about her job performance, Ms. Lancaster presented no evidence that the School District was dissatisfied with her job performance or that any accommodation was necessary for her to continue performing in a satisfactory manner. Ms. Gavin testified, based on personal observation and her review of the personnel file, that Ms. Lancaster was a very good employee. Ms. Gavin could think of no reason why the School District would not renew Ms. Lancaster in her job position. Finally, it is noted that, whatever Ms. Lancaster’s subjective experience, little time had actually passed between the decision on Ms. Lancaster’s complaint and her resignation. On October 7, 2019, Ms. Johnson assured Ms. Lancaster that her current placement was temporary and that “I will speak with you about next steps and transition options” after the final decision on her complaint. The decision letter to Ms. Lancaster was dated October 19, 2019. Ms. Johnson met with Ms. Lancaster and Ms. Sotelo on November 1, 2019. At least from Ms. Johnson’s perspective, the meeting was productive, resulting in a plan to make the details of Ms. Lancaster’s job at Matanzas easier and a process for arranging her excused absences from work for counseling sessions. These findings are not meant to minimize Ms. Lancaster’s anguish and feelings of isolation and estrangement from her colleagues. The District, however, had only a vague sense of Ms. Lancaster’s degree of suffering and was actively taking steps to make her more comfortable emotionally and to make her workplace safe. The School District had no issues with her job performance. The School District was aware of her emotional trauma and was making it convenient for her to receive counseling. The School District was not aware that she was claiming to have a mental disability that required further accommodations. None of the actions undertaken by the School District was objectively retaliatory, notwithstanding Ms. Lancaster’s subjective perceptions. Ms. Lancaster offered no evidence that her separation from employment with the School District was anything other than voluntary. In summary, Petitioner offered insufficient evidence that she was discriminated against based on her disability. Petitioner also offered insufficient evidence that she was subjected to unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Flagler County School District did not commit an unlawful employment practice related to the Charge of Discrimination filed in this case, and dismissing the March 28, 2021, Petition for Relief. DONE AND ENTERED this 21st day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Laura Beth Lancaster 3207 Victory Palm Drive Edgewater, Florida 32141 Dylan J. Hall, Esquire Bush & Augspurger, P.A. 411 East Jackson Street Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by the parties Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988. Facts established by evidence at hearing Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/ Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows: FDLE auxiliary special agents are authorized to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement. Section VI.A.3. of Procedural Order 87-2 read as follows: Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an on-duty status. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint. DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1992.
