The Issue Whether Respondent committed an unlawful employment practice in the case of Petitioner.
Findings Of Fact Ms. Rippy commenced her employment with the Department on June 30, 2000, as a correctional officer, at the Florida State Prison Work Camp at Starke, Florida. She was terminated on June 19, 2001. The Department of Corrections is a state agency that is charged with providing incarceration that supports the intentions of criminal law, among other things. The Florida Commission on Human Relations administers the Florida Civil Rights Act of 1992. When Ms. Rippy was hired as a correctional officer on June 30, 2000, she, and the Department, believed she was subject to a one-year probationary period. During that time, the parties believed she could be terminated without cause. Subsequent to her employment she had unscheduled but excused absences on as many as 15 occasions. On June 12, 2001, Ms. Rippy requested that her supervisor, Lt. J. L. Oliver, approve leave for her to commence Sunday, June 17, 2001. Lt. Oliver did not approve this request because to approve the request would cause the staffing level at the facility to recede below permitted limits. On Saturday June 16, 2001, at 6:00 p.m., Ms. Rippy called Sergeant K. Gilbert, Third Shift Control Room Sergeant, and told him that she was taking medication prescribed by a doctor that she had seen that day and that she would be sleeping and that as a result, she would be unable to report to work on her shift which began at midnight, June 17, 2001. She also volunteered that she would bring in a doctor's note excusing her absence. On Monday, June 18, 2001, Lt. Oliver asked her if she had a doctor's note explaining her absence on June 17, 2001. She replied that she had not been ill as reported to Sergeant Gilbert, but had in fact attended a party. She told him that she had not seen a doctor, was not on medication, and had attended a "bachelorette party" on June 17, 2001. In other words, she admitted that she had lied about the reason for her absence. She admitted this, under oath, at the hearing. Lt. Oliver informed her that it was his intention to charge her with unauthorized absence without pay, and possibly to take other disciplinary measures. Subsequently, persons higher in the chain-of-command decided to terminate Ms. Rippy. This decision was made because she had excess absences and because she had lied to persons in authority. This occurred 11 days before everyone believed she would have attained the status of permanent career service. On June 21, 2001, Correctional Officer Corey M. McMurry (Officer McMurry), a white male, was arrested in Starke, Florida, for driving under the influence of alcohol. As a result, on July 11, 2001, he was adjudicated guilty and sentenced to twelve months supervised probation, and suffered other court-ordered sanctions. Officer McMurry, at the time of his arrest, was a probationary employee. He was served a written reprimand because of his conviction of driving under the influence on December 19, 2001. Ms. Rippy testified, without foundation, that Officer McMurry's probation terminated on November 15, 2001, and that the Department did not learn of his arrest until December 2001. Ms. Rippy's testimony provides a plausible explanation for why more than five months expired from the time of his conviction until the issuance of the written reprimand. Ms. Rippy believes that the circumstances surrounding her offense were substantially similar to those of Officer McMurry. However, the chronic absenteeism of an employee, including unexcused absences, is more likely to disturb the good management of a correctional facility than an employee being convicted of driving under the influence on one occasion. Assistant Warden Doug Watson believes that correctional officers should be trustworthy. He believes that the credibility is critical and that lying is an extremely serious offense, when committed by a correctional officer. Ms. Rippy was paid $13.30 per hour and received substantial fringe benefits when she worked for the Department. Following her termination she was unemployed until January 2002, when she began working for a Wendy's restaurant for $5.75 per hour. In April 2002, she obtained employment with a private security company named Securitas. She started at $6.40 and received an increase to $7.00 per hour at a subsequent unknown date, and she continues to be employed with the company.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which dismisses Ms. Rippy's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 25th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of August, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Henderson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Juliette C. Rippy 1622 Northeast 19th Place Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Brenda Barnett, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent was initially hired in 1991, and worked as a steward in the jail kitchen facilities before becoming a detention deputy. Respondent is a state-certified sworn correctional officer and, in her capacity as a deputy detention officer, is charged with exercising direction, dominion, and control over incarcerated inmates. Prior to her employment as a detention deputy and as a condition thereto, Respondent received extensive training. Such training includes nearly 500 hours of academy training sanctioned by the Criminal Justice Standards and Training Commission. Also, once employed, the Pinellas County Sheriff's Office provides detention deputies with in-service training and forty hours of formal training annually. Respondent received such additional training through in- service while employed as a detention deputy. In March 1995, Respondent Barnett began a casual relationship with an inmate, Nelson Alas. Inmate Alas was incarcerated at the same facility where Respondent Barnett worked. At first, Respondent exchanged pleasantries such as "hello" or "good bye" with Inmate Alas. Inmate Alas would compliment Respondent. Within days, Inmate Alas attempted to pass a note to Respondent Barnett. Initially, Respondent refused to accept the notes. However, within ten days, Respondent accepted a note from Inmate Alas and soon began writing letters to Inmate Alas. Between the period, March 1995 and April 1995, Respondent wrote at least twenty-one letters to Inmate Alas. During this time Inmate Alas also wrote letters to Respondent. At one point Inmate Alas gave Respondent a photograph of himself. The letters written by Respondent to Inmate Alas were romantic in nature, and many of them spoke of her feelings for and attraction to Inmate Alas. Respondent has never denied and has, in fact, admitted writing these letters to Inmate Alas. Respondent further admitted that on one occasion during her involvement with Inmate Alas, she kissed him. Respondent's actions came to the attention of Detention Deputy David Howsare when an inmate told him that there was communication between Respondent and Inmate Alas, including the exchange of notes and allegations of physical contact. Detention Deputy Howsare reported this through his chain of command, and a search of Inmate Alas' cell was conducted. The search uncovered letters that had been written to Inmate Alas. At about the same time the complaint was made to Detention Deputy Howsare, a complaint regarding Respondent was called in to the PCSO Inspection Bureau. The complaint was made by Cynthia Hadley, who identified herself as the girlfriend of Inmate Alas. Ms. Hadley indicated that her boyfriend, Inmate Alas, was having an affair with a detention deputy and had written several letters to the detention deputy. The matter was referred to the Administrative Investigation Unit and Sgt. Daniel Buckingham and Sgt. Robert Kidd were assigned to investigate the complaint. During the investigation, Sgt. Buckingham sought to ascertain the identity of the person who wrote the letters that were found in Inmate Alas' cell. In this regard, Sgt. Buckingham had the letters sent out for processing for latent fingerprints. After this analysis revealed only the fingerprints of Inmate Alas, Respondent was required to provide a handwriting exemplar. The handwriting exemplar was sent to the Florida Department of Law Enforcement for analysis. The result confirmed that Respondent was the author of at least fifteen of the letters. Also, as part of the investigation, interviews were conducted with Inmate Alas, Ms. Hadley, and Respondent. The interview with Inmate Alas' was unsuccessful in that he was evasive, refused to answer many questions, and was generally uncooperative. During her interview with Sgt. Kidd and Sgt. Buckingham, Respondent admitted improper contact with Inmate Alas, including writing letters to him and receiving a photograph of him. Upon completion of the investigation, the investigatory file was given to Respondent's Chain-of-Command Board for review. Based on its review, the Chain-of-Command Board unanimously found that Respondent had violated rules and regulations of the PCSO relating to loyalty, association with prisoners, and knowledge of and obedience to rules and regulations. As a detention deputy, Respondent's actions of fraternizing with an inmate compromised her position and may have lead to the erosion of security. Also, such undue familiarity has the potential for jeopardizing the security of the institution and the safety of the public as well as that of Respondent's own family. Under the PCSO General Orders B-15 and C-1, as amended in February 1994, the disciplinary point calculation for Respondent Barnett was seventy-five points. The range of discipline for seventy-five (75) points is from a 10- day suspension to termination. The Chain-of-Command voted unanimously to recommend termination. Sheriff Rice concurred with the recommendation and terminated Respondent on June 20, 1995. Throughout the investigation and hearing, Respondent has admitted that she engaged in the conduct which is the subject of the termination notice. Respondent explained that her involvement with Inmate Alas occurred during a time that she was experiencing marital problems. In Respondent's opinion, these problems were exacerbated when she found a diary belonging to her husband in which he stated that he no longer loved her. According to Respondent, due to these problems, she was extremely vulnerable at that time. However, Respondent indicated that after the incidents which are the subject of this proceeding, she and her husband went to counseling and, presently, their marriage is strong. Prior to this case, Respondent has not been investigated or disciplined by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff's Civil Service Board enter a Final Order finding Respondent, Brenda Barnett, guilty of conduct unbecoming a public servant; violating PCSO Rules C-1, V, A, (002) and (011) and Rule C-1, V, C, (063); and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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. 96-0019 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. 1-4. Accepted. 5-22. Accepted and incorporated to the extent not subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1-2. Accepted. 3-6. Accepted and incorporated. 7-8. Accepted but subordinate to result reached. 9-11. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate to result reached. 14-20. Rejected as conclusions of law and/or legal arguments. COPIES FURNISHED: Lawrence A. Jacobs, Esquire Feathersound Place 2727 Ulmerton Road, Suite 2 Clearwater, Florida 34622 James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Copies furnished continued: Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 34649-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: l. The Petitioner, Terry Wooden, a black male, was hired by the Respondent, State of Florida, Department of Corrections, on December 5, 1980 as a Correctional Officer I at River Junction Correctional Institution. River Junction Correctional Institution (RJCI) is a secure facility responsible for the care, custody and control of certain inmates. Correctional Officers are assigned to security posts which are located throughout the facility. Some "inside" security posts are located within inmate dormitories. Outside perimeter security posts, which are small tower-like buildings, are located along the perimeter fence and are the last observation posts between containment and possible inmate escape. For security reasons, the Respondent prohibits sleeping on the job and requires its correctional officers to remain alert at all times. Supervisors (generally employees holding the rank of sergeant) often make "rounds" of the facility wherein security posts are visited to ensure that the officer on, duty at that post is alert. RJCI procedure requires that an officer on duty at a security post "challenge" a supervisor or other correctional officer who approaches the security post. When a supervisor enters a dormitory, the officer assigned to that post is required to challenge that person by immediately leaving the officer's station (located within the dormitory) to meet the approaching person. If the officer is on the telephone or engaged in some activity, it is acceptable for the officer to wave his hand to the approaching person or indicate in some other manner that he is aware that someone has entered the area. When a supervisor approaches an outside security post, the officer on duty is required to meet the approaching individual at the door of the building. Discipline of employees at RJCI is based on a progressive system. During the time the Petitioner was employed at RJCI, a sergeant was required to report a sleeping/unalertness violation by a correctional officer to the shift lieutenant (supervisor of all employees on a particular shift). There were no written guidelines and the reporting officer was required to exercise some discretion in determining whether he believed that an offense had been committed. On the first incident, the shift lieutenant would counsel the employee about the infraction, but no written report was made. On the second report of an offense to the shift lieutenant, a written report of the incident would be prepared by either the reporting officer or the shift lieutenant. The shift lieutenant would interview the employee about the alleged violation and refer the report to the department head (correctional officer chief). The department head would then submit the written report to the personnel manager with recommendations. Upon receiving a written report of an infraction from the department head, the personnel manager would gather information pertaining to the offense and give it to the superintendent, along with recommendations for disposing of the case. The superintendent would then schedule a "predetermination conference", confront the employee with the allegations and determine the disciplinary action to be taken. Prior to 1979 and until June 1982, L. C. McAllister, a white male, was superintendent at RJCI; from June 1982 to December 10, 1982, George Ragans, a white male, was acting superintendent at RJCI; from December 13, 1982 through August 1983, Ken Snover, a white male, was superintendent at RJCI. Each superintendent was responsible for determining the particular penalty to be imposed using guidelines set forth in Chapter 33, Section 9 of the Rules of Personnel. Generally, the employee's first sleeping/unalertness violation reported to the personnel manager, and ultimately, the superintendent, would result in counseling (oral reprimand); the second violation would result in a written reprimand; the third violation would result in a suspension; the fourth violation would result in a longer suspension or dismissal; and, the fifth violation would result in dismissal. Major Miles, a white male, is a department head and functions as the overall supervisor of correctional officers at RJCI. Miles assigns posts and shifts to correctional officers. Major Miles usually assigns new correctional officers to midnight shift after they complete orientation. After Petitioner completed his orientation period, he was placed on midnight shift (12:00 p.m. to 8:00 a.m.) and assigned to Post 23 in "G" dormitory. The Petitioner completed his one year probationary period on December 5, 1981. The Petitioner was assigned an overall rating of "satisfactory" by his shift supervisor, Lieutenant Carter, a black male. The evaluation stated that Petitioner got along well with supervisors and fellow employees. In December of 1981, Lieutenant Childs, a white male, became the Petitioner's shift supervisor. Initially, the Petitioner and Lieutenant Childs enjoyed a friendly relationship. Lieutenant Childs drove the Petitioner to work on several occasions and both men shared a common interest in sports. On December 13, 1981 an officer made a routine check of "G" dormitory and found Petitioner asleep in the officer's station. The Petitioner was counseled about this first infraction. Shortly after Petitioner's sleeping incident of December 13, 1981, Major Miles changed Petitioner's post assignment from dormitory to Perimeter Post 3. Major Miles changed Petitioner's post because several inmates had complained to him that a lot of stealing was taking place and that Petitioner was not watchful enough to prevent it. The inmates also complained that Petitioner's counseling style seemed like harassment. After Petitioner's post was changed from "G" dormitory to Perimeter Post 3, his relationship with Lieutenant Childs began to turn sour. The Petitioner was "concerned" because he believed that Lieutenant Childs had input into Major Miles' decision to reassign him. On May 10, 1982, Lieutenant Childs found the Petitioner unalert at Perimeter Post 3. The Petitioner received a written reprimand for this second infraction. On August 19, 1982, Sergeant Pollock, a black male, found Petitioner unalert while on duty at Perimeter Post 3. Sergeant Pollock reported the incident to Lieutenant Childs but suggested that Petitioner be counseled rather than "written-up". Sergeant Pollock believed that a lesser punishment might encourage Petitioner's improvement. Lieutenant Childs told Pollock to think about it for a couple of days. On August 21, 1982, Sergeant Parks and Sergeant Tharpe found Petitioner unalert at his post. When Sergeant Pollock discovered this incident, he changed his mind about his previous recommendation to Lieutenant Childs. Childs told Pollock to submit a written report. The Petitioner was suspended for 3 days for these third and fourth sleeping/unalertness infractions. On September 2, 1982, Lieutenant Childs completed an employee rating evaluation on Petitioner for the period September 1, 1981 to September 2, 1982. Petitioner was given an overall rating of "satisfactory", but Lieutenant Childs noted several areas of concern. Lieutenant Childs mentioned that Petitioner seemed to interpret counseling sessions "as personal threats conspired, for no bonafide reason to harass him." However, Lieutenant Childs went on to note that Petitioner's attitude and work performance was improving and that Petitioner was "making a definite and positive effort to correct his shortcomings." On October 28, 1982 an inmate escaped from RJCI. At the time of the inmate's escape, Petitioner was on duty at Perimeter Post-3 and William Chessher, a white correctional officer, was on duty on Perimeter Post 2. Major Miles, the department head, recommended that both men be disciplined for being unalert. Because the inmate's escape route took him through Perimeter Post 3's primary area of responsibility, Major Miles recommended that Petitioner be dismissed; Miles recommended that Chessher be reprimanded or suspended because the escape route was along Perimeter Post 2's secondary area of responsibility. On November 18, 1982, Acting Superintendent George Ragans held a predetermination conference concerning Petitioner's October 28, 1982 unalertness charge. Mr. Ragans found that the offense was substantiated but did not follow Major Miles' recommendation that Petitioner be dismissed. Ragans suspended the Petitioner for fifteen (15) days for this fifth sleeping/unalertness violation. Immediately following the November 18, 1982 predetermination conference, Ragans suggested to Petitioner that Petitioner should request a shift change. However, Petitioner explained to Ragans that he had a new baby at home, was taking college courses and did not want a shift change at that time. When Petitioner returned to work on December 16, 1982 after his fifteen (15) day suspension he had decided that he wanted a shift change. Petitioner went to the control room to find out how to submit a shift change request. In the control room, Petitioner spoke with a female officer concerning the procedures for requesting a shift change. The female officer agreed to type a shift change request for Petitioner. The female officer typed the request and gave Petitioner a copy. Shift change requests are directed to the shift lieutenant, in this instance, Lieutenant Childs, who then passes the request to Major Miles for final action. The female officer told Petitioner that she would put the original request for shift change in Lieutenant Childs' box in the control room. For some reason, Lieutenant Childs never received Petitioner's written request for shift change. In January 1983, the Petitioner spoke with the new superintendent, Ken Snover, regarding a shift change. Mr. Snover told Petitioner to proceed through the change of command and if he was still not satisfied, to return and speak with him again. One night, while on duty sometime after December 16, 1982 Petitioner asked Lieutenant Childs about a shift change. Lieutenant Childs told Petitioner that there were going to be a lot of changes made. Petitioner spoke to Major Miles on one occasion after December 16, 1982 and asked about a shift change. Major Miles told Petitioner to submit a written request. Major Miles never received a written request for shift change from Petitioner. Sometime prior to August 1, 1983, Petitioner was temporarily assigned to "G" dormitory and worked with officer Gano, a white male. Gano complained to Lieutenant Childs that Petitioner was sleeping on duty. Before Gano complained to Childs, Childs had received allegations of Petitioner being asleep from other correctional officers. Because of those complaints, Childs had instructed two sergeants to closely review Petitioner's dormitory work habits. On one occasion, the sergeants told Lieutenant Childs that Petitioner appeared to be asleep while on duty. On August 1, 1983, Lieutenant Childs instructed officer Gano to let him know if Petitioner was sleeping by giving a pre-arranged signal. Officer Gano found Petitioner asleep or "non-alert" and gave the pre-arranged signal. Lieutenant Childs entered the dormitory without Petitioner challenging him and found Petitioner unalert. Lieutenant Childs wrote a report on Petitioner's sixth sleeping infraction. Superintendent Ken Snover held a predetermination conference concerning Petitioner's August 1, 1983 unalertness charge. Snover ordered the Petitioner's dismissal, effective August 18, 1983. Steve Williams, a white Correctional Officer I, was caught sleeping on April 20, 1981 and was given an oral reprimand for this first offense. Williams was caught sleeping again on June 21, 28, and July 31, 1981. Because of the personnel manager's vacation a predetermination conference letter could not be sent until after the third occurrence and all three violations were addressed at the same conference. Williams was given a written reprimand for this second sleeping infraction. Thomas Jackson, a black Correctional Officer I, was caught sleeping on October 29, 1982 and was given an oral reprimand for this first offense. On May 13, 1983, Jackson was caught sleeping a second time and was given an official reprimand. On August 10, 1983, Jackson was caught sleeping a third time and was suspended for one week (5 working days). Jackson was offered and accepted a shift change, from midnight to evening shift. Dennis Edwards, a white Correctional Officer I, was caught sleeping in July 1982 and was counseled for this first offense. In Apri1 1983, he was caught sleeping again and was given a written reprimand. In July 1983, Edwards was suspended for 5 working days because of his third offense of sleeping while on duty. Larry Garrett, a black Correctional Officer I, was counseled for sleeping on duty for his first offense, but no documentation was made to his personnel file. On September 5, 1981 Garrett was caught sleeping a second time and was given a written reprimand. On December 3, 1981, Garrett was caught sleeping a third time and was suspended for three days. Garrett was offered a shift change, but declined because he was taking classes and had a newborn baby. On December 16, 1981, Garrett was caught sleeping for the fourth time and was terminated. Michae1 Weeks, a white Correctional Officer I, was caught sleeping on June 9, 1981 and was given a written reprimand for this first offense. On May 10, 1982 he was caught sleeping a second time and was given a written reprimand. Weeks was caught sleeping again on August 1, 8 and 10, 1982. Weeks was given a predetermination conference letter, but before the hearing was held, he was caught sleeping again on August 18, 1982. Weeks voluntarily resigned on August 18, 1982. Warren Harris, a black Correctional Officer I, was caught sleeping on November 29, 1979 and was given a written reprimand for this first offense. On June 13, 1981, Harris was caught sleeping again and was given another written reprimand. On September 9, 1981, Harris was caught sleeping for the third time and was suspended for three days. Harris was caught sleeping again on October 28 and 29, 1981 for his fourth offense. Harris was given a letter of termination, but resigned before the termination took effect. Harold Bailey, a white Correctional Officer I, was caught sleeping on June 14, 1982 and was counseled for this first offense. Bailey was caught sleeping again on July 17, 1982 and was given a written reprimand. On January 5, 1983 Bailey was caught sleeping on duty for the third time and was suspended for five days. On April 2, 1983, Bailey was charged with a fourth offense but Superintendent Snover found the allegations "unsubstantiated." Nevertheless, Bailey was counseled and documentation of the incident was placed in his personnel file. Bailey was offered a shift change but he refused it. Bailey's shift was later changed. In an effort to assist employees who were working midnight shift and having problems staying awake, the personnel manager and the superintendent would sometimes offer the employee a shift change or encourage the employee to seek a shift change. At various times, both black and white employees were offered, or encouraged to seek shift changes when they were having trouble on midnight shift. From time to time, correctional officers would submit requests for shift and/or post changes. Major Miles, the department head, usually made shift or post changes based on an individual's written request and the needs of the institution to have certain security posts staffed. Major Miles made some shift and post changes without a written request and over the objection of the employee if it was required by the needs of the institution. Shift and post changes at RJCI were given to both white and black employees in a substantially similar manner. Lieutenant Childs, upon receiving a request for a shift or post change, was required to forward the request to Major Miles for final action. Lieutenant Childs would forward a request for shift or post change with a favorable recommendation only if he believed the employee "earned" the recommendation by good performance on his current shift or post. As shift lieutenant, Childs was authorized to make some temporary post re-assignments for employees on his shift. During the last several months of Petitioner's employment, Petitioner was permanently assigned to Perimeter Post 3, but Lieutenant Childs temporarily assigned him to a post in "G" dormitory. While Petitioner was temporarily assigned to "G" dormitory, Lieutenant Childs became aware through "the grapevine" that Petitioner wanted to have Mondays and Tuesdays off, rather than Tuesdays and Wednesdays. Because different post assignments, carried different days off, a change in days off would have required a post change. Lieutenant Childs told Sergeant Pollock to tell Petitioner that he would arrange for Petitioner to have the desired days off as soon as possible if Petitioner's work performance improved. In January 1983 a new Department of Corrections directive required that certain correctional officers receive 160 supplementary hours of training. A majority of the staff at RJCI was required to complete the supplemental training. From January 1983 through August 1983, personnel at RJCI were engaged in the on-going training program. One set of training classes were scheduled from 9:00 a.m. to 1:00 p.mand another set of classes were scheduled from 6:30 p.m. until 10:30 p.m., five days a week. During the period from January 1983 through August 1983, shift and post changes were made primarily to allow correctional officers the opportunity to attend the training sessions as required. As superintendent of RJCI, Ken Snover conducted "predetermination conferences" wherein he was required to review allegations, determine whether or not the charges were substantiated and then decide what disciplinary action to take. Superintendent Snover did not apply a lesser standard of proof at predetermination conferences where Petitioner was charged with sleeping/unalertness violations than he applied when white officers were involved. On one occasion Snover found that the allegations of sleeping were not sufficient to warrant disciplinary action against two white employees, Harold Bailey and Walter Dean, where the allegation was made by one sergeant but denied by both correctional officers. At the predetermination conferences that Snover conducted where Petitioner was charged, the allegations were all substantiated by one or more individuals and denied only by Petitioner. Perimeter Post 3 as well as other perimeter posts, are isolated outside security posts and are generally not considered to be the most desirable security post assignments. Both black and white officers were assigned to Perimeter Post 3 and other perimeter posts. A slight majority of the correctional officers permanently assigned to perimeter posts were black. There was no indication that correctional officers were assigned to Perimeter Post 3 on a racial basis nor as a "set up" to achieve dismissal.
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 the complaint and the petition for relief filed by Mr. Terry Wooden. DONE and ORDERED this 8th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day September, 1986. COPIES FURNISHED::: Drucilla E. Bell, Esq. Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Marva Davis, Esq. 379 E. Jefferson Street P. O. Drawer 551 Quincy, FL 32351 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esq. General Counsel Florida Commission on. Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 3230 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 21. The first sentence is rejected as a recitation of testimony. The second sentence is rejected as not supported by Competent substantial evidence. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 20 and 30. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 4. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence and/or misleading. Rejected as not supported by competent substantial evidence. 14A. Rejected as subordinate. 14B. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. 15A. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 15B. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 16A. Adopted in Finding of Fact 20. 16B. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 5. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as misleading and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 25 and 26. Partially adopted in Findings of Fact 27,^ 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 26, 27, 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 39, and 41. Matters not contained therein are rejected as subordinate, misleading and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as not supported by competent substantial evidence. (No paragraph 34). Partially adopted in Finding of Fact 43. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 48. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as subordinate. Adopted in Findings of Fact 12 and 15. Partially adopted in Findings of Fact 16 and 17. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 5 and 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. - Adopted in Findings of Fact 19 and 20. Partially adopted in Finding of Fact 17. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 27. Matters not contained therein are rejected as subordinate. Rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 27, 28 and 29. Adopted in Finding of Fact 44. Adopted in Finding of Fact 48. Partially adopted in Finding of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 39 and 47. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 36. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 33. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 38.
Findings Of Fact Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29) In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9) The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4) On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26) In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean) By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6) Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13) On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14) The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20) Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28) On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form. Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Earl Archer, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32301 Edward M. Teuton 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Conley Kennison Attn: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Respondent, Department of Corrections (“DOC” or the “Department”), engaged in discriminatory practices against Petitioner, Patrick Quercioli, on the basis of his disability; and, if so, what relief should be granted.
Findings Of Fact Petitioner is a 53-year-old Caucasian male. From approximately November 19, 2004, until August 4, 2016, Petitioner was employed by the Department as a Correctional Officer. He was promoted to the rank of Correctional Officer Sergeant on July 28, 2006. At all times relevant hereto, Petitioner was working at the Annex section of the Lowell Correctional Institution (“Lowell”) located in Marion County. Lowell is a maximum security prison for female inmates; it has an average daily count of approximately 2,800 prisoners. The Department is an agency of the State of Florida, created pursuant to section 20.315, Florida Statutes, and is responsible for, inter alia, hiring and monitoring all employees engaged in operations at a state prison. Petitioner was separated from his employment with DOC due to the fact that he could not “perform the essential functions of his job.” That determination was based on a report from Petitioner’s therapist, Mrs. Robinson, and her opinion that Petitioner could not effectively perform his duties in the presence of inmates. Inasmuch as all Correctional Officer Sergeant positions require contact with inmates, DOC terminated Petitioner’s employment. The facts leading to the ultimate termination of Petitioner’s employment are anything other than ordinary. A discussion of those facts follows. In October 2014, a female inmate at Lowell was found dead in her cell. Petitioner was named as a suspect in the death, despite the fact that at the time of death he was on vacation with his family, i.e., he was not working at the prison. Local and national news outlets began reporting about the death, and Petitioner was named numerous times as a suspect and possible participant. Apparently, Petitioner’s name had been provided to the inmate’s family prior to her death as someone who had been harassing her. Nonetheless, Petitioner’s character and reputation were impugned by the news stories. Petitioner was placed on administrative leave pending further review by the Department. Meanwhile, the Florida Department of Law Enforcement (“FDLE”) commenced its own extensive investigation into the death of the inmate. The investigation focused quite heavily on Petitioner and one other correctional officer, but FDLE ultimately concluded that there was no evidence to prove either of the men had taken part in the inmate’s death. The inmate’s death, in fact, was ruled to be from natural causes.1/ The FDLE investigation was concluded on January 21, 2015. The Department did not issue a particular statement concerning Petitioner’s vindication, nor did it publish a notice about the FDLE findings. Petitioner takes great umbrage at this perceived failure by DOC, but cited to no requirement that the Department do so. The Department acknowledges that it did not make any effort to make public the findings of the FDLE investigation. During the FDLE investigation and while Petitioner’s alleged involvement in the incident was being broadcast by the news services, Petitioner began receiving threats against his life and the lives of his family members. Who made such threats or why such threats may have been made was not made clear at final hearing. Whether it was family and friends of the inmate, concerned citizens who perceived Petitioner as some kind of monster, or someone else making the threats, Petitioner was concerned for his safety. He was especially worried for his daughter, who had been living part-time with Petitioner on a split schedule with his ex-wife. When the news stories began to appear, the ex-wife refused to allow the daughter to visit with Petitioner. While he wanted to see his child, Petitioner knew that it was better for her to stay away from him until the situation improved. As a result of the publicity, the threats, and the stress on him and his family, Petitioner developed PTSD. The Department approved Petitioner for participation in EAP on March 6, 2015. EAP paid for counseling sessions with Petitioner’s chosen therapist, Mrs. Robinson. Petitioner had about 12 sessions with Mrs. Robinson while he was covered by EAP. After his EAP coverage expired, Petitioner met with Mrs. Robinson for two more sessions paid for as part of his FMLA leave. Mrs. Robinson identified Petitioner’s condition at the beginning of their sessions as quite extreme. He suffered from nightmares, crippling fear, paranoia, and unwillingness to leave his home. He had dark circles under his eyes and was obviously distraught. Mrs. Robinson began to work with Petitioner to help him view his fears and concerns differently. She taught him to utilize mindfulness meditation techniques. He was shown how to perform activities of daily life without being reminded of the trauma he had experienced. The number of sessions he spent with Mrs. Robinson was not sufficient for her to fully address his needs, however. She was able to diagnose his PTSD and began treatment for that condition, but their relationship ended before she could do much for him. By the time her treatment of Petitioner was concluded, they were working toward Petitioner’s acceptance of some inmates in his workplace, as long as they were not “general population inmates.” Ms. Robinson reiterated that Petitioner should not work within the prison compound, i.e., within the perimeter, at this time. She believed that with further assistance, Petitioner may one day be able to do so. By letter dated March 13, 2015, Mrs. Robinson notified the Department that, concerning Petitioner, “It is recommended that he does not return to work until further notice due to the hostility he has faced from the public, his co-workers and other inmates that he would be responsible for which could trigger further de-compensation and contribute to greater emotional disturbance. Mr. Quercioli is open to learning positive coping skills for improved feelings management as well as the treatments necessary for recovering from PTSD.” For about three months, the Department attempted to determine whether Petitioner would be able to return to work as a Correctional Officer Sergeant. On June 9, 2015, DOC notified Petitioner that his FMLA leave had been exhausted and he needed to talk to his supervisor, Major Patterson, about when he could come back to work. Mr. Patterson contacted Petitioner and basically said he would need to come back to work at the Lowell Annex, i.e., return to his old job. Meanwhile, the Department, by letter dated June 16, 2015, asked Mrs. Robinson for her opinion regarding whether Petitioner could work as a Correctional Officer Sergeant. The parties to this matter characterize the tone of that letter quite differently. It is therefore quoted here in its entirety for the purpose of objectivity: Dear Mrs. Robinson: The above employee [Petitioner] is a Correctional Office Sergeant with the Florida Department of Corrections at Lowell Correctional Institution. Your opinion regarding Mr. Quercioli’s medical status while working in a potentially dangerous environment will assist management in their decision to retain Mr. Quercioli in his current position. In order for us to determine whether or not Mr. Quercioli can safely perform his duties as a Correctional Officer Sergeant, we request that you complete this questionnaire as to his ability to perform the duties and responsibilities of a Correctional Officer Sergeant to full capacity. Please bear in mind that Correctional Officer Sergeants must be able to work split, rotating or fixed shifts, weekends, holidays and overtime possibly without notice as required. Overtime may include double shifts and working on off duty days. In order to assist you in making this determination, I am enclosing a position description and a list of essential functions for the Correctional Officer Sergeant position held by Mr. Quercioli. Also, please bear in mind that Mr. Quercioli’s job does require that he be able to possess a firearm. Furthermore, he could at any time be placed in a situation where the use of physical force, including deadly force may be necessary, to control violent inmates or prevent imminent threat to life. We ask that you provide information regarding how Mr. Quercioli can treat and control his condition in a correctional environment. In addition, we need to know what precautionary measures are required to ensure his physical condition is not exacerbated when he is involved in a highly dangerous situation with inmates or volatile situations with supervisors and/or co-workers. In rendering your opinion, if you determine Mr. Quercioli can perform some duties but not others, please specify which duties cannot be performed and the reason why. Additionally, if there is anything that can be done to allow him to perform these duties, please provide this information. In the letter making this request, the Department included a job description and a brief questionnaire to be filled out by the therapist. The questionnaire asked, “After reviewing the position description of Correctional Officer Sergeant, can Mr. Quercioli perform the duties of a Correctional Officer Sergeant with no restrictions?” The questionnaire went on to ask for any reasons that the question was answered in the negative. Mrs. Robinson replied that “No,” Petitioner could not perform the duties without restrictions. She went on to say that, “With 100% supervision of inmates as his primary duties and his constellation of PTSD symptoms, Mr. Quercioli would be at risk of decompensation. A job with no inmate contact may be possible in the future.” Mrs. Robinson had previously, in response to a Medical Certification request from FCHR, listed a few alternative jobs that Petitioner may be able to do, including: “administration away from inmates; staff security away from general population inmates; key keeper or arsenal maintenance away from general population inmates.” The evidence is unclear as to whether the Department was aware of her suggestions regarding those potential jobs for Petitioner. At final hearing, Ms. Robison reiterated her concern about Petitioner being asked to work in an area where general population inmates might be present. Her testimony, in part, was as follows: Q: “[W]ould he have been able to perform the required functions of his employment position based on what you read in his personnel description, the essential functions of his position, had the department considered or approved any request for accommodations Mr. Quercioli made on the department? A: The current job description, position description for a sergeant as a correctional officer, he couldn’t do that job. Q: Could he do others? A: He could do other jobs and we were working towards limited, you know, his acceptance and, you know, with the cognitive behavioral therapy helps you think different about things and he was opening up to the idea that yes, there will be inmates around but they’re at a lower level of risk, and so he was open to that and for trying to work in a different position. * * * Q: So, earlier or a few moments ago when you said he couldn’t perform under [sic] the position of a correctional sergeant, that’s not a hundred percent accurate, correct? A: Right, that was the job description, that is what he was doing in general population, supervising inmates. He can’t supervise inmates and that has a hundred percent by it, supervision of male or female inmates. That what he -- the part of his job that he couldn’t do. Q: Uh-huh, but with an accommodation, he could do that? A: Yes. In another job, other than supervising his primary one hundred percent duties of supervising male or female inmates. Tr., pp. 48-50. Exactly what duties Petitioner could perform without difficulty is unclear. It is certain he could not supervise inmates 100 percent of the time. Whether he could work around inmates in an environment separated from the prison compound is not certain. Whether he could respond to an emergency situation inside the compound is extremely doubtful.2/ Petitioner’s attorney submitted a letter to DOC dated June 26, 2015. The letter requested accommodations that might make it possible for Petitioner to perform one or more jobs at Lowell. The letter suggested part-time or modified work schedules, job restructuring, and other possibilities. The letter also stated, in part, “Instead of requiring Sergeant Quercioli to once again re-live the nightmares arising from his previous duty in the Lowell Annex, the Department could instead assign him to a less stressful desk job.” DOC responded that a less stressful desk job is not a feasible accommodation because a person in that position would not be able to perform the essential duties of a Correctional Officer Sergeant. The attorney responded to the Department that his previous request for an accommodation was not meant to be limited to a “desk job” only; he meant to include any reasonable accommodations. Though the two conversants used different terminology, it is obvious they were both addressing alternative jobs that did not require Petitioner to work within the prison compound, whether that meant literally sitting at a desk or not. Petitioner intimated, but did not conclusively prove, that there were certain jobs in the administration offices, i.e., outside the compound, that he might be capable of filling. No evidence was presented concerning the exact nature of those jobs, the responsibilities attached thereto, or Petitioner’s qualifications to fill them. Following the exchange of letters between DOC and Petitioner (through his attorney), the Department notified Petitioner via letter dated July 9, 2015, that a “personnel action” was being contemplated by DOC which could result in his dismissal from employment. The basis for a personnel action was that Petitioner’s therapist said he was “currently unable to perform the duties of . . . a Correctional Officer Sergeant.” Petitioner was given the opportunity to attend a pre- determination conference with DOC personnel to provide oral or written statements in regards to the personnel action. A conference was held on July 23, 2015. The Department was represented by Warden Gordon and Colonel Edith Pride. A teamster representative, Michael Riley, accompanied Petitioner to the conference. Petitioner’s attorney, Mr. Bisbee, attended the conference via telephone. Petitioner did not bring his therapist, Ms. Robinson, to the meeting because “it never crossed my mind” that she should attend. At the conference, Petitioner reiterated his desire to return to work, but stated he would rather not interact with inmates, even though he believed he might be able do so. His belief was inconsistent with his therapist’s determination and contrary to his attorney’s representations. It is unclear whether DOC could have assigned Petitioner to a position that did not involve some contact with inmates. There were a few jobs mentioned that take place in the prison’s administration building, outside the perimeter. Some of the “trustee” type inmates working within the administration building may have been much less threatening to Petitioner than general population inmates. But because every Correctional Officer Sergeant is deemed to be on call to attend to disturbances within the prison compound, regardless of their job or workplace, Petitioner could be subject to having close contact with the general population inmates. Petitioner identified one specific job in administration that he thought he might be able to handle despite some inmate contact. That job, in the area of training, was filled by another Correctional Officer Sergeant. Petitioner did not ever formally apply for the job. Subsequent to the predetermination conference, the Department issued a letter to Petitioner advising him that “You will be dismissed from your position as a Correctional Officer Sergeant effective August 4, 2015.” The letter gave Petitioner the right to grieve the action or to appeal it to the Public Employees Relations Commission. Petitioner did not avail himself of either of those options. Instead, he filed a claim with FCHR, resulting ultimately in the present action. DOC based its decision to terminate Petitioner’s employment on the fact that his own therapist had opined that he could not perform the essential functions of a Correctional Officer Sergeant. That is because persons in that position–-no matter what duties they were performing--must be able at a moment’s notice to react personally to any emergency situation that may arise within the inmate population. A correctional officer working in the motor pool, for example, may have to drop what he is doing, pick up a firearm, and rush into the compound to quell a disturbance. A sergeant who is performing training for other officers may have to cease her training and immediately report to duty inside the compound to respond to inmate unrest. There is no job under the Correctional Officer Sergeant umbrella that is immune from contact with inmates at any given time. There was, in short, no reasonable accommodation the Department could offer Petitioner. Two pertinent quotes from the record explain concisely the basis of the Department’s position in this case: As a general rule, we don’t “accommodate” correctional officers because the accommodations requested generally include exemption from the essential functions. We provide alternate duty for those officers who are temporarily unable to perform the duties of their position because of a work related injury. However, while on alternate duty, they do not wear a uniform, nor do they perform the duties of a [Correctional Officer]. * * * Quercioli’s therapist, Beth Robinson, stated he was not able to perform the duties of his position, although a job with no inmate contact may be possible in the future. There are no correctional officer positions, regardless of rank, whose essential functions do not include dealing with inmates. Exhibit 4 to Petitioner Exhibit 1, email from Patricia Linn, human resources analyst. It is not unusual for employees to request so-called “accommodations” from DOC relating to their duties as correctional officers. Such requests may include exceptions to the dress code, a need for ergonomic chairs, leave extensions, parking space changes, alternate work schedules, and the like. Each request is reviewed on its own merits and some are granted, some are denied. In fact, Petitioner alluded to the fact that after the inmate death incident, he had been reassigned to alternate duties not having to do with inmate monitoring. His duties were related to assisting applicants for jobs at Lowell to fill out their applications. Petitioner intimated that he did not enjoy that position. Petitioner asserts that DOC made no effort to contact him to discuss possible accommodations. He did not cite to any existing policy or rule which would require the Department to do so, however. Further, Petitioner admitted that he did not attempt to initiate such conversations with the Department, either. Since losing his job at Lowell, Petitioner has been unable to obtain gainful employment. Of the scores of internet applications for employment (and one in-person interview), not a single position came to fruition. As a result, Petitioner cashed out his state retirement plan, using the money to pay bills and provide for his daughter’s needs. Petitioner presented no evidence in this case that persons with disabilities were treated any differently by the Department when they requested accommodations.
Recommendation RECOMMENDED that a final order be issued by the Florida Commission on Human Relations, determining that the Department of Corrections had legitimate cause for the dismissal of employment of Petitioner, Patrick Quercioli, and that there is no evidence of discrimination. DONE AND ENTERED this 16th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2017.
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
