Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact On or about November 18, 1994, Petitioner submitted a state employment application for a position as a Detention Care Worker II (DCW II), position number 40756 with the Department of Juvenile Justice. A DCW II is responsible for the care and custody of juvenile offenders and for providing counsel and advise to these offenders. Respondent submitted the application to Alexander Wynn, who was at that time superintendent for the Orlando Regional Juvenile Detention Center. It was the responsibility of Superintendent Wynn to review all the applications submitted for the open position, interview the candidates and submit a recommendation to his superiors for hire in the position. At the time of submission, Petitioner had not answered the questions regarding his background which appear in the first block on page 3 of the application. Petitioner informed Superintendent Wynn during the interview that he was not sure how to answer the questions as he was not aware of the degree of one offense in his background and because his record had been cleared of the charges. Superintendent Wynn instructed Hall to provide him with documents from the court which indicated the nature of the offense and its disposition. Petitioner was asked on his state application whether he had ever pled guilty or nolo contendere to a crime which is a felony or first degree misdemeanor. Petitioner responded to this question in the negative. Petitioner was also asked on his state application whether he had ever had the adjudication of guilt withheld on a crime which is a felony or first degree misdemeanor; again Petitioner responded in the negative. Petitioner was charged in February of 1994 with one court of violating Section 784.03(1)(a), Florida Statutes, battery. A violation of Section 784.03(1)(a), Florida Statutes, is a first degree misdemeanor. The information which was filed on Petitioner specifies that the battery charge resulted from the fact that Petitioner, "on or about the 9th day of November 1993, within Volusia County, Florida, did actually and intentionally touch or strike Lucretia Hall against her will by squeezing victim around the neck and/or forcing victim onto the bed." At the time of the battery, Petitioner was married to and living with Lucretia Hall. The court withheld adjudication of guilt pending Petitioner's successful completion of probation. Petitioner was placed on probation for one year, ordered to participate in marriage counseling, and pay court costs or perform 25 hours of community service. Petitioner successfully completed probation. Probation was terminated and the case was closed. Petitioner provided Wynn with a document indicating his judgment and sentence and his release from probation. Wynn stated that he was satisfied that the documents cleared Petitioner and, accordingly, Petitioner followed Superintendent Wynn's instructions and answered the questions per his direction. Wynn informed Petitioner that he would file the documents in Petitioner's personnel file, and if anyone had any questions regarding the charge to refer them to him. By letter of September 30, 1994, Petitioner was offered a permanent position as a Detention Care Worker II at the Orlando Regional Detention center. He began work on or about November 27, 1994. Petitioner was subsequently fingerprinted and a background screening was conducted. Following the completion of a background screening, Petitioner was notified that he was not eligible for employment in a caretaker's position and was terminated by Respondent on June 14, 1995, pursuant to allegations that he had plead guilty to domestic battery and was the subject of a confirmed abuse report. This was the only allegation of domestic abuse in his nine-year marriage to Lucretia Hall. Petitioner has remarried since the incident and has never exhibited any violent tendencies towards his current wife or his stepchildren. Sufficient time has lapsed since the incident and he has demonstrated rehabilitation. Petitioner has demonstrated that he is a reliable person of good moral character. There is not, nor has there been, any evidence of a confirmed abuse report against the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting an exemption to Petitioner, Richard Hall. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5896J To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4 (in part) 5 (in part), 6, 7, 8 (in part), 9 (in part), 10 (in part), 11 (in part), 12 (in part), 13, 14 (in part), 15, 16 (in part), and 17. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10, 11 (in part), 12 (in Preliminary Statement), 13 (in Preliminary Statement), 14 (in Preliminary Statement). Rejected as hearsay or immaterial and irrelevant: paragraphs 4, 5, 11 (in part). COPIES FURNISHED: Kenneth W. Williams, Esquire Irvin Williams and Associates 1103 W. Willow Run Drive Port Orange, Florida 32119 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a) and (7), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a female, African-American. Petitioner was first employed by the Department from June 8, 1990 through October 10, 1990. Petitioner notified the Department by letter dated October 5, 1990, that she was resigning her position with the Department effective October 11, 1990. Subsequently, Petitioner applied for a position as correctional officer with the Department on April 3, 1998, and again on October 23, 1998, but was not hired on either of these occasions. Petitioner filed a Charge of Discrimination with the Commission on February 3, 1999, alleging that the Department had discriminated against her by denying her employment while hiring less experienced white correctional officers and that the Department had denied her employment in retaliation for her participation in the USA Case against the Department. There is sufficient evidence to show that Petitioner was a member of the class action suit referred to as the USA Case. On September 8, 1999, Petitioner again applied for a position as a correctional officer with the Department and was hired as a correctional officer with the Department on November 15, 1999. However, Petitioner abruptly resigned that position on January 12, 2000, giving unfair treatment as the basis for her resignation. Petitioner's testimony, which is credible, was that sometime in 2000 she applied for a position as a correctional officer with the Department by sending an application to the Tampa Service Center (an administrative branch of the Department) and that the Tampa Service Center requested that she take a pre-employment drug test and physical. Petitioner testified that since the Department requested that she take the pre-employment drug test and physical it was incumbent upon the Department to offer her the position. Petitioner failed to present sufficient evidence to show that the Department's policies required that she be offered a position once she was asked to submit to a pre-employment physical and drug test. Offers of employment by the Department are conditional only and are contingent upon a satisfactory background check. However, before any job offer was extended to Petitioner, the Tampa Service Center closed down and its records were forwarded to the Orlando Service Center (another administrative branch of the Department). Subsequently, Petitioner contacted the Orlando Service Center concerning her application. The Orlando Service Center was unable to locate any application from Petitioner or any data that could have been electronically stored. Nevertheless, sometime during the latter part of 2000, Petitioner was allowed to resubmit her application to the Orlando Service Center and was considered for a position. The Orlando Service Center determined that Petitioner failed the required background check based on Petitioner's short tenures on two previous employment occasions followed by abrupt resignations. Petitioner's application for employment was rejected on this basis. Petitioner presented evidence that an employee of the Department, Scott MacMeeken had resigned on at least two occasions and had been rehired. However, Petitioner failed to present any evidence as to MacMeeken's race or whether MacMeeken was equally or less qualified than Petitioner. Likewise, Petitioner failed to present sufficient evidence to show that white applicants for the positions which Petitioner had applied for but was not hired, were equally or less qualified than Petitioner. Petitioner failed to present sufficient evidence to show that, during the period of time in question, the Department hired less experienced white correctional officers over equally qualified or more qualified non-white correctional officers, or that the Department, in its hiring process, during this period of time, gave preference to white applicants for correctional officer positions over non-white applicants for correctional officer positions. Petitioner failed to present sufficient evidence to show that either her race, African-American, or her participation in any prior law suits, specifically the USA Case, or the filing of the Complaint with the Commission formed the basis for the Department's rejection of her applications in 1998 or 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 11th day of March, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gloria J. Browdy 12042 Villa Road Spring Hill, Florida 34609 WILLIAM R. CAVE 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 11th day of March, 2002. Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
Findings Of Fact The Respondent, Lester Bishop, was employed as a Correctional Officer at Union Correctional Institution from March 20, 1981, to April 1, 1986. Union Correctional Institution (UCI) is a facility which houses inmates ranging in custody levels from minimum to close. In December of 1981, the Respondent was given a copy of the rules of the Department of Corrections. At this time he acknowledged that he was responsible for compliance with these rules. In late March and early April, 1986, the Respondent was scheduled to work the first shift at UCI beginning at 12:00 midnight and ending at 8:00 a.m.. The supervisor for this shift was either Lieutenant R. L. Weiland or Lieutenant S. E. Stafford, depending upon the day of the week. On March 23, 1986, the Respondent called Lieutenant Weiland at Union Correctional Institution at 12:30 a.m., requesting and receiving sick leave for the remainder of this shift. On March 24, 1986, the Respondent did not report to work, and he did not contact the shift supervisor to request leave. As a result, he was placed on unauthorized leave without pay status for this day. On March 25, 1986, the Respondent called his supervisor, requesting and receiving eight hours sick leave for this day. On March 26 and 27, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. March 28 and 29, 1986, were the Respondent's regularly scheduled days off. From March 30 until April 2, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. On April 2, 1986, the Superintendent of Union Correctional Institution, T. L. Barton, sent the Respondent a letter informing him that he had abandoned his position at Union Correctional Institution, and that he was dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Lester Bishop, from his position as Correctional Officer at Union Correctional Institution, for abandonment, pursuant to Rule 22A 7.010(2), Florida Administrative Code, effective March 25, 1986. THIS Recommended Order entered on this 9th day of December, 1986, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gilda H. Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986. Ernest A. Reddick, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lester Bishop, in pro per Box 1341 Starke, Florida 32091
The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Should Respondent Division of Retirement grant Petitioner's request to be included for retirement purposes in the Special Risk Class (SRC) from July 1, 1981 through October 24, 1985? Should Respondent Division of Retirement grant Petitioner's request to be included in the Special Risk Administrative Support Class (SRASC) for the period October 25, 1985 until January 1, 1998?
Findings Of Fact At all times material, Alachua County employed a jail facility Director who had overall supervision of correctional officers and special risk employees and who was ultimately responsible for restraint of inmates. Petitioner was continuously employed by the Alachua County Department of Corrections at the Alachua County Jail from the date of his initial employment as a Correctional Officer I on April 22, 1974, to his lay-off as Assistant Director of the Alachua County Jail on January 1, 1998. Political opponents of Petitioner raised the issues of his eligibility for SRC and SRASC classification and the validity of his correctional officer certification beginning approximately in 1996. Petitioner began work April 22, 1974, as a Correctional Officer I (uniformed line officer) and was recommended by his employer Alachua County and approved by Respondent for SRC membership, effective April 22, 1974. Respondent reviews applications for SRC and SRASC for completeness with no audit beyond the certification by the member and the employer. Respondent may approve, retroactive to the date specified in the application. If at any time it is determined that a member is not eligible for inclusion in a particular retirement category, the member is removed, retroactive to the date of ineligibility. Petitioner was certified as a correctional officer by the Council of Correctional Standards on July 1, 1974. Petitioner was promoted to an Administrative Assistant I position, effective May 18, 1981. The Administrative Assistant I position did not require certification as a correctional officer. On May 18, 1981, Petitioner was a certified correctional officer in a position that did not require certification. Effective July 1, 1981, the Florida Legislature merged the Council of Correctional Standards, which had certified Petitioner on July 1, 1974, with the Law Enforcement Standards Council, to form the Criminal Justice Standards and Training Commission (CJSTC), an arm of the Florida Department of Law Enforcement (FDLE). In so doing, the Legislature provided Section 943.19(3), Florida Statutes, to "grandfather-in" certain correctional officers' certifications. On July 1, 1981, Petitioner was a certified correctional officer in a position that did not require certification. Sometime later in 1981, the newly-formed CJSTC requested that Alachua County send the CJSTC a list of all certified correctional officers in its employ. Such a list was prepared by Alachua County personnel and forwarded to the CJSTC. The list prepared by the County did not include Petitioner's name, presumably because at that time, as an Administrative Assistant I, he was not serving in a position requiring certification as a correctional officer. Petitioner was promoted to the position of Administrative Operations Supervisor, effective March 22, 1982. This position also did not require correctional officer certification. Although Petitioner was employed as an Administrative Assistant I beginning May 18, 1981, and as an Administrative Operations Supervisor beginning March 22, 1982, he did not make application for inclusion in SRASC until March 17, 1986. On April 23, 1986, Alachua County recommended Petitioner's SRASC classification. Kim Baldry, Director of Personnel for Alachua County since 1983, signed off on a form stating that Petitioner: Was employed for training and/or career development . . . and is subject to reassignment at any time to a position qualifying for special risk membership. Respondent approved Petitioner's SRASC membership retroactive to October 25, 1985. Petitioner's November 13, 1987, application for inclusion in SRC as "Assistant Director/Administrative Support," was neither recommended by Alachua County, nor approved by Respondent. In July 1994, the Administrative Operations Supervisor position was reclassified, without any change in job description or duties, as Assistant Director/Administrative Support, and Petitioner served in that capacity until his lay-off in 1998. The position never required a correctional officer certification. Petitioner was not employed as a uniformed correctional officer from May 18, 1981, to his lay-off in 1998. Petitioner did not hold a position for which the minimum requirements included certification as a correctional officer from May 18, 1981, until his lay-off in 1998. Kim Baldry testified that although Petitioner had many job titles during his 1981 to 1998 employment, his actual duties from 1981 to 1998 were consistently over personnel, budget, and fiscal matters; that he primarily supervised fiscal assistants and accounting clerks; and that he was never a jail "supervisor" as such. She did, however, concede that she had dealt with him over correctional officer discipline from 1983 to 1998. Petitioner and Ms. Baldry concurred that from 1981 to 1998, his duties remained basically the same, and that at various times, he was known as "Acting Assistant Director" and "Assistant Director" and when the Director was out of town, Petitioner served as "Acting Director." Petitioner testified without refutation that from 1981 to 1998, his duties always included personnel oversight of line correctional officers; overseeing payroll leave and timecards for such officers; and screening, interviewing, and processing applications for new correctional officers. One of his job descriptions confirms this. Petitioner also testified that he had daily contact with inmates of the Alachua County Jail in the commissary, medical services area, and food preparation area, and with trustees in support services, and that he regularly appeared before the County Commission concerning budget, jail crowding, and the need for more correctional officers. Petitioner's daily primary duties and responsibilities after May 18, 1981, were neither the direct custody, nor the physical restraint, of prisoners or inmates at Alachua County Jail. His daily primary duties were fiscal, budgeting, accounting, and personnel administration in nature. He was not a line officer on the floor with special risk officers and inmates on a daily basis, although he did consult with some line and special risk correctional officers on personnel matters, including disciplinary matters. Actual discipline went through correctional officer captains and lieutenants. Petitioner stated that when he was an Administrative Assistant I, he was subject to reassignment as a line correctional officer at any time and that when he was Administrative Operations Supervisor, there were two other supervisors who oversaw work release and jail supervision, respectively, on a day-to-day basis. At some point, one position was eliminated and one was assigned to the court system. From 1994 to 1995, when Petitioner was Assistant Director, there was one other Assistant Director. Both Assistant Directors reported directly to the Director of Alachua County Jail, who had total oversight of the jail operation. However, when both the Director and the other Assistant Director were out of town, or later, when Petitioner was the sole Assistant Director, the Director delegated his duties to Petitioner for the interim, and Petitioner was left directly in charge of all functions, including security, supervision of correctional officers, and supervision of inmates. When questions concerning his certification and retirement status arose in 1996, Respondent requested that Alachua County personnel look into the matter because he considered it to be his employer's problem and not his own. Alachua County formally requested review by the Respondent of Petitioner's retirement designation, indicating that it did not believe that Petitioner should continue in SRC or SRASC, because he was serving the employer in an administrative capacity. After considerable correspondence back and forth, FDLE, the agency that houses the CJSTC which has the responsibility and authority to certify correctional officers, advised Alachua County by a May 24, 1996, letter that: . . . A review of the files in the Division of Criminal Justice Standards and Training indicates that Mr. Krank was a certified correctional officer with the Corrections Council. That council was merged with the Law Enforcement Standards Council to form the Criminal Justice and Training Commission (CJSTC) in 1981. Officers employed in correctional officer positions were "grandfathered" into the CJSTC at that time. Mr. Krank was not employed as a correctional officer at the time of the merger, and, therefore, was not grandfathered into the CJSTC. It is suggested that if Mr. Krank requests more specific information concerning the grandfather clause in the statute, that he contact the State Department of Corrections. I have enclosed a copy of the 1983 Florida Statutes reference [sic] the "Saving Clause." However, it does not go into any detail as to what the process was at that time. (Joint Composite Exhibit 5) (Emphasis supplied.) Respondent received a May 21, 1998, letter from FDLE, stating: After a thorough search of the Automated Training and Management System (ATMS2), historical databases, and records stored on microfiche, there is no record of Mr. Krank working as an officer in Florida. Citing Rule 11B-27.0026, Florida Administrative Code, first enacted in 1994, FDLE went on to say that it considered Petitioner to be a certified correctional officer separated from employment and not re-employed within four years after the last date of separation, who therefore needed to reactivate his certification. (Joint Exhibit 10). The undersigned's research shows that Rule 11B-27.0023, Florida Administrative Code, new in 1982, provided that a certified correctional officer separated from employment and not re-employed within four years must reactivate his or her certification and that Rule 11B-27.0026, Florida Administrative Code, cited in FDLE's letter, actually explains how to reactivate certification. In reliance on FDLE correspondence, Respondent removed Petitioner from the SRC and SRASC classifications. Subsequent to being laid-off by Alachua County in 1998, Petitioner accepted a job as a correctional officer trainee with the Florida State Prison on February 2, 1999. Petitioner was hired as a correctional officer trainee at Florida State Prison, pending resolution of the instant case. Petitioner's arrangement with Florida State Prison personnel was that he would attend training from February 22, 1999, through May 25, 1999, after which he would have to pass a test administered by FDLE on June 29, 1999, in order to become a certified correctional officer and continue in the correctional officer position for which he had been hired.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order removing Petitioner from SRC and SRASC classification from July 1, 1981 to October 24, 1985, and from October 25, 1985 to January 1, 1998, respectively. DONE AND ENTERED this 19th day of August, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 19th day of August, 1999.
