Findings Of Fact At all times relevant hereto Thomas K. Morgan was a trooper with the Florida Highway Patrol and was certified as a law enforcement officer by Respondent. On April 28, 1984, Brenda Liles, a 22-year-old woman, was returning to her home in Ruskin when she ran out of gas and pulled off on the shoulder of U.S. 41 in a rural area. Before leaving from her departure point, she realized her gas gauge was on empty and she called her father to ask him to come look for her if she was not home in 15 minutes. Trooper Morgan saw the AMC Concord parked along U.S. 41 and pulled up behind the car. Miss Liles was in the car with the doors locked and the windows rolled up. When Respondent approached her car he shined his flashlight inside the car to look for weapons or anything suspicious. Seeing the trooper, Miss Liles lowered the window to tell him she had run out of gas but her father would be along momentarily. Respondent stayed alongside Miss Liles' car and they held a general conversation for several minutes before Mr. Liles arrived. Miss Liles was dressed in shorts and tee shirt. When her father arrived he found his daughter calm and he suggested she get into his pickup truck and he would return for the AMC the following day. Respondent told Liles that he (Morgan) had a gas can he could borrow to get gas and the car could then be driven away rather than be left alongside the highway all night. Liles took the gas can and departed. He planned to stop by his home for a funnel but, even so, the round-trip for gas was expected to take no more than ten minutes. When Liles left, Respondent continued talking to Miss Liles and suddenly started shining his flashlight over her body and said, "Pussy, pussy, let me see that pussy," or "I want that pussy; open it up," or words of similar import. Miss Liles initially did not understand him and asked him what he had said. He repeated the words while shining his flashlight over her body. She immediately rolled up the window through which they had been talking (the doors had remained locked) and became very frightened and started crying. Respondent returned to his patrol car and started filling out reports. Approximately five minutes later Mr. Liles returned with the gas, saw his daughter was crying, and that she was visibly upset. After putting gas in the car, he returned the gas can to Respondent and asked his name and badge number. When the AMC was started Liles told his daughter to follow him and he drove to the sheriff's substation in Ruskin. Although Liles did not ask his daughter what had happened, he sensed it had something to do with Respondent. Upon arrival at the Sheriff's Office they encountered Trooper Donna L. Middleton who was told by Liles that they wanted to make a complaint. At this time Miss Liles was either still crying or showed visible evidence of having been crying and was quite upset. Trooper Middleton took father and daughter into an office to inquire as to the nature of the complaint. Miss Liles was having some difficulty getting the words out so Mr. Liles excused himself and went outside. Trooper Middleton gave Miss Liles complaint forms and asked her to write down what had happened. She assisted Miss Liles in the correct spelling of some of the words. As soon as she realized the nature of the complaint, Middleton called her supervisor to come to the Ruskin office. The Lileses remained at the substation until the then-Corporal Shriver arrived approximately one hour after the Lileses had arrived. At this time Miss Liles still gave the appearance of being upset and of earlier crying. Shriver took custody of the statement and the Lileses returned home. The complaint was duly processed by the Florida Highway Patrol, referred to the investigation branch, and investigated by Lieutenant Brown. Brown interviewed all the parties above named including Respondent. Following this investigation Respondent was dismissed from his employment with the Florida Highway Patrol. Respondent presented his wife and a female friend of his wife to testify that they had never heard Respondent make comments about the anatomical parts of the female body, and that such comments would be inconsistent with their impression of Respondent's character. In his testimony Respondent confirmed all of the testimony of the Lileses except Respondent's use of the language complained of, which he denied. Although all witnesses had testified that the weather was mild on the evening in question, Respondent testified Miss Liles rolled up her window because she was cold and he then returned to the patrol car. Respondent also testified that he had always been interested in work as a law enforcement officer and was very proud of his position as a trooper in the Florida Highway Patrol.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 May, 2011.
Findings Of Fact Vernon St. Charles is a radio teletype operator I with the Florida Highway Patrol and is a career service employee with appeal rights with the Career Service Commission. On or about November 1, 1977, St. Charles was the radio teletype operator on duty at the Florida Highway Patrol Tampa District Office. While he was on duty, an accident occurred involving a young child. St. Charles dispatched a Florida Highway Patrol trooper to the scene of the accident who reported that the child was very seriously injured. The trooper requested a homicide investigator be dispatched which St. Charles did. G. Ronald Stroud is a sergeant with the Hillsborough County Sheriff's Department assigned the duty of investigating accidents involving school-age children as a part of the Department's safety program. Sergeant Stroud received notification from the radio dispatcher of the sheriff's department that an accident had occurred near a school involving a child which Florida Highway Patrol Units were investigating. Sergeant Stroud called the Florida Highway Patrol District Office and spoke with St. Charles. Sergeant Stroud identified himself and asked about the accident and how old the child was to determine whether he should follow up the accident for the Hillsborough County Sheriff's Department. St. Charles had received calls from the medical examiner's office, the U.S. Post Office, whose vehicle was involved in the accident, and Sergeant Stroud from the Hillsborough County Sheriff's Department. At the hearing, St. Charles was uncertain which call had been Stroud's; however, St. Charles explained that he had tried to contact troopers at the scene to get additional information and that they were away from their vehicles. St. Charles did not have the information requested by Sergeant Stroud and therefore referred him to the hospital where they had taken the child. Sergeant Stroud identified Exhibit 2, a complaint letter he had written to Lieutenant Lowman of the Florida Highway Patrol. Stroud stated in the letter that an unknown male dispatcher, later determined to be St. Charles, had told Stroud that "He wasn't really concerned how old the child was and that if I (Stroud) wanted to know I could call the Brandon Hospital." At the hearing, Sergeant Stroud reconfirmed his recollection of St. Charles' comments to him. Without regard to the exact language used by St. Charles, it is clear that St. Charles did not provide Sergeant Stroud with the information which he sought and did not explain the existing situation which prevented him from giving Stroud the information. The position of radio teletype operator is an important one because the operator is responsible to transmit calls to and from the troopers by radio, perform certain law enforcement checks for the troopers by telephone or teletype, and respond to telephone calls from the public and other law enforcement agencies. The radio teletype operator's duties contribute to the overall enforcement effort of the Florida Highway Patrol and to the relationship of the Florida Highway Patrol with the public and other law enforcement agencies. This requires that the radio teletype operator perform his duty in a professional manner, using good personal judgment and diplomacy. St. Charles had been counseled previously about the manner in which he conducted his duties which at times bordered upon rudeness. St. Charles explained that he spoke loudly and in short sentences because his mother had been deaf and that in the pressure situations which sometimes developed, his manner of speech and abruptness might appear to be discourteous and rude to those with whom he was speaking.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency took the disciplinary action for good cause and therefore should be sustained. DONE and ORDERED this 13th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1978. COPIES FURNISHED: Vernon L. St. Charles 1401 North Forbes Road Plant City, Florida 33566 Mrs. Dorothy Roberts Appeals Coordinator, CSC 530 Carlton Building Tallahassee, Florida 32304 Edwin Strickland, Esquire John Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida Mr. Maurice Helms Personnel Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1 by retaliating against Petitioner because he engaged in protected activity.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Department in 1978 as an Examiner I in Bartow and has continuously worked for the Department since his hiring. He held various positions within the Department through the years, including Supervisor I and Assistant Regional Administrator. In 1998, Petitioner held the position of Hearing Officer in the Bureau of Administrative Review. In February 1998, Petitioner suffered a heart attack and underwent open heart surgery for the placement of two stents to repair the blockage to his arteries. On April 7, 1998, Petitioner submitted to Tommy Edwards, assistant director of the Division of Driver Licenses, a letter requesting a voluntary demotion from Hearing Officer to a word processing position, in order to reduce the stress and pressure of his employment. Petitioner's request was granted. Later in 1998, Petitioner's health improved and he began applying for promotions, but was consistently passed over. He learned that for one Examiner I position, he had been the top candidate, but was not selected because of the letter he had written to Mr. Edwards and because Mr. Edwards had expressed concerns about placing Petitioner in a high stress position. Petitioner wrote a second letter to Mr. Edwards, dated February 9, 1999, to clarify that his physician had given him a clean bill of health, with no restrictions as to the type of job he was able to handle. This situation led to Petitioner's filing a complaint against the Department in 2000, in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case No. GC-G-00-0141, based on 42 U.S.C. §§ 12111 et seq., the Americans with Disabilities Act, and Chapter 760, Florida Statutes, the Florida Civil Rights Act. On July 8, 2003, the parties entered into a Settlement Agreement and Release resolving this litigation. As a condition of the settlement, Petitioner agreed to release all claims against the Department connected with his complaint. The Amended Employment Charge of Discrimination, filed on October 26, 2004, with the FCHR, alleges that the Department has denied Petitioner promotions and transfers in retaliation for his previous complaint. At the final hearing, testimonial and documentary evidence was elicited as to Petitioner's applications for six positions within the Department. The selection processes for four of the positions, 903481, 2333, 902315, and 2986, occurred after the Settlement Agreement and Release was signed and less than 365 days before the Amended Employment Charge of Discrimination was filed. The Selection processes for two of the positions, 5350 and 5234, occurred after the Settlement Agreement and Release was signed, but more than 365 days before the Amended Employment Charge of Discrimination was filed. Evidence concerning the latter two positions was admitted for the limited purpose of demonstrating a pattern of discrimination by the Department. The Department's selection process for an open position commences with advertising the opening. Applications are received, and a Department employee conducts an initial screening of the applications to determine which candidates meet the minimum qualifications for the position in question. Those applications passing the initial screening are then subjected to a detailed screening in which they are scored according to work experience and the knowledge, skills and abilities pertinent to the position, as well the state-mandated veterans' preference. The Department personnel in charge of filling the position set a cutoff score to ensure an adequate pool of interviewees, then a panel conducts interviews of the selected applicants. These interviews are scored, and the highest scoring candidate is generally offered the position. The Department does allow the second highest scoring candidate to be selected, if his or her score was within 10 points (on a 100-point scale) of the highest ranked applicant. The applicant interviews are not free-form, but are conducted according to a process dictated by the Department. For the positions in question, the Department provides the interview panel with a list of five questions. Each candidate is given the list of questions and has fifteen minutes to read them and prepare a response. The interview panel then meets with the candidate, asks each question and listens to the answers. The interviewers then score the responses according to an answer key provided by the Department, which contains several "correct" answers to each question. A candidate may receive full or partial credit for his responses, depending on how many of the correct answers he provides. The candidates may also be given written exercises that are graded and scored by the interview panel. Each candidate for a given position is provided the same set of questions and written exercises. The entire selection process, from initial screening of all applicants to final interview scores and selection of the successful applicant, is recorded on a spreadsheet document called the Applicant Selection Guide ("ASG"). Department policy provides that an existing ASG may be used to fill a subsequent comparable position, provided the second position is filled within six months of the process that generated the ASG, and the candidate who fills the second position is the highest ranked candidate remaining on the ASG, or is within 10 points of that candidate. The first position Petitioner applied for was position 5350, a compliance examiner position in Pinellas County for the Division of Motor Vehicles. The application deadline was June 4, 2003. Out of 162 applicants, five were selected for interviews, including Petitioner. At the conclusion of the interview process,3 the highest scoring candidate was Gary Konopka. Petitioner and Allen Shaffer tied for second. The position was offered to Mr. Konopka, who declined it for personal reasons. The position was then offered to Mr. Shaffer, who accepted it.4 Richard Roth was the regional administrator for the Division of Motor Vehicles at the time position 5350 was filled. He retired in August 2003, shortly Mr. Shaffer was hired. Mr. Roth testified that he made the decision to hire Mr. Shaffer, but had no present recollection of how he decided to break the tie between Petitioner and Mr. Shaffer. Mr. Roth had no knowledge of Petitioner's complaint of discrimination, or of his lawsuit against the Department. Assistant Bureau Chief Edwin Robcke, Bureau Chief Charles Gowan, and Margaret Lamar, the senior consultant in the office of employee relations, who investigates discrimination charges within the Department, all testified that they were unaware of any Department-established procedure for breaking tie scores between applicants. Petitioner next applied for position 5234, an operations analyst5 position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was October 31, 2003. Deborah Todd, the program manager who would be the direct supervisor of the employee hired to fill position 5234, performed the detailed screening of the applications. Out of 113 applicants, five were selected to be interviewed, including Petitioner. Ms. Todd conducted the interviews along with Eileen Bishop, an operations analyst in the bureau of administrative reviews. Stephen Walter was the top scoring candidate, but a recent disciplinary action in his current job rendered him ineligible for the promotion that position 5234 would have offered. Ms. Todd made the decision to offer the position to Deborah Leto, who had the second highest score. Ms. Leto accepted the position. Petitioner finished fifth out of the five candidates interviewed,6 and was notified by letter dated January 2, 2004, that he had not been selected for the position. At the hearing, Ms. Todd testified that Petitioner's interview was "fair," in the sense of "not bad." His answers to the oral questions were too short, but he did receive the maximum points possible for his written work exercise. Ms. Bishop likewise testified that Petitioner did "fair" on his interview. Ms. Todd testified that she had not met Petitioner before the interview and had no knowledge of his prior lawsuit against the Department. Petitioner next applied for position 902315, a compliance examiner position in Orange County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was March 4, 2004. The ASG for position 902315 indicates that the interview process was conducted by Department employees Donn Lund and Marie Smith of the Winter Park office. Neither Mr. Lund nor Ms. Smith was called to testify in this proceeding. The ASG indicates that approximately 125 people submitted applications and that 11 applicants were interviewed. Petitioner had the highest screening score of any candidate. However, it appears that once again Petitioner's interview was less than impressive. The successful applicant, Esteban Capo, received a score of 90 out of a possible 100 points. Petitioner received a score of 37 points, placing him in a tie for last place among the candidates interviewed. At the hearing, Petitioner's recollection of his interview for position 902315 was lacking in detail. He simply testified that he recalled nothing untoward occurring during the interview that would account for his low score. Petitioner next applied for position 2333, a compliance officer position in Hillsborough County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was June 16, 2004. Out of 190 applicants, five were selected for interviews, including Petitioner. In the detailed screening, Petitioner scored 83 points, which tied him for the high score with Lina Botero. Ms. Botero had the high score for the interview process, scoring 82.08 points, was offered position 2333, and accepted the position. Thomas Thayer had the second highest score, with 74.96 points. In August 2004, the ASG for position 2333 was used by region administrator Gary Konopka to fill the opening for position 5350 created by the promotion of Allen Shaffer to a field supervisor position. Position 5350 was offered to Mr. Thayer, who accepted the position. In the interview process for position 2333, Petitioner scored 60.84 points, finishing fourth out of the five applicants interviewed. The interviewers for position 2333 were Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who no longer works for the Department and did not testify in this proceeding. Mr. Schmitz testified that he had no recollection of Petitioner's interview for the position. Mr. Konopka recalled that Petitioner's answers to the interview questions were "very curt, very brief, almost as if he were going through the motions." In contrast, Ms. Botero was extremely animated and very talkative. Mr. Konopka pointed out that the scoring criteria award points for multiple responses from a candidate, and, thus, Ms. Botero was better served by speaking more. As Mr. Konopka put it, "the more you talk, the better off you are because you may stumble into the answer." Mr. Konopka recalled that Mr. Thayer was a little nervous, but, like Ms. Botero, he gave several answers during the oral questions. Mr. Konopka characterized Mr. Thayer's written submissions as "superb." Mr. Konopka testified that he knew nothing of Petitioner's complaint against the Department at the time of the interviews for position 2333 and that none of the members of the interview panel discussed Petitioner's complaint. Petitioner next applied for position 2986, a senior highway safety specialist position in Orange County7 for the Division of Motor Vehicles. The application deadline was June 29, 2004. Out of 31 applicants, five were selected to be interviewed. Petitioner was not selected for an interview. Dennis Valente, chief investigator of the Division of Driver Licenses, conducted the screening for position 2986. Mr. Valente testified that, after an initial screening to make sure the candidates met the bare minimum qualifications for the job, he then conducted a detailed screening to ascertain the candidates' education, experience, and special knowledge, skills and abilities. After the detailed screening was completed, Mr. Valente set a cut-off score to ensure that five to seven candidates were interviewed. Mr. Valente did not know Petitioner and was not aware that Petitioner had filed a complaint against the Department.8 For position 2986, the cut-off score was established as 88 out of a possible 100 points and five candidates were interviewed. Petitioner's score on the detailed screening was 72 points. Mr. Valente recalled that Petitioner received maximum scores for four out of five of the "experience" factors on the detailed screening, but that he received no points for education. Petitioner is a high school graduate and points were available only for post-secondary education.9 The successful applicant for position 2986, Clark Brookstone, had a master's degree in mass communication, in addition to his bachelor's and associate of arts degrees. Petitioner next applied for position 903481, an operations and management consultant position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was July 6, 2004. Out of 66 applicants, seven were selected for interviews. Petitioner was not selected for an interview. Danny Watford, chief of the Bureau of Administrative Reviews, performed the screening, then conducted the interviews for position 903481 with Deborah Todd. Mr. Watford testified that he performed no initial screening, and that every candidate received a detailed screening. At the time of the screening, Mr. Watford did not know that Petitioner had filed a complaint of discrimination. Mr. Watford set the cut-off for obtaining an interview at 40 points. Petitioner received 24 points on his detailed screening. Mr. Watford testified that Petitioner was minimally qualified for the job, but that the job opportunity announcement stated a preference for a candidate with a bachelor's degree. The successful candidate, Gordon Brown, had a bachelor of science degree from California State University at Fullerton. As noted above, Petitioner is a high school graduate. At the final hearing, Petitioner listed eight other positions for which he applied and was not offered the job. These positions were not applied for or filled within the time frame pertinent to this proceeding. Petitioner conceded that there was no direct evidence of discriminatory or retaliatory intent on the part of the Department employees who conducted these employment screenings and interviews. In fact, those Department employees who were familiar with Petitioner spoke highly of his work. Charles Gowan, Bureau Chief of Field Operations, testified that Petitioner has done a good job as an employee in his bureau.10 On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of commendation for Petitioner's work as temporary office manager for the Lakeland driver license office. Patricia Connery, a senior highway safety specialist with the Department, testified that Petitioner had done a good job as her supervisor in 1994. Ms. Connery also testified that she obtained her current position through a telephone interview, without going through a formal application and interview process. Petitioner contends that this incident, coupled with the unexplained method used to break the tie between Petitioner and Mr. Shaffer for position 5350, and the alleged subjectivity of the interview process, demonstrates that the Department's selection process is a sham designed to allow the Department's administrators to hire whom they please without regard to the candidates' merits. In this instance, Petitioner alleges, the sham process was employed to retaliate against him for having brought a discrimination complaint and lawsuit against the Department. The evidence established that there were minor variations among the Department's offices as to the precise methodology employed in the hiring process. However, the evidence also established that the process was internally consistent, i.e., any local variations in the process were uniformly applied to all applicants for a given position. Ms. Connery's internal promotion by means of a telephone interview was an aberration and was unrelated to any position for which Petitioner was a candidate. Petitioner contends that someone in the Department's central office in Tallahassee was the real decision maker for these positions, and in each case insured that Petitioner was not the successful applicant. The evidence did not support this contention. In each instance, the hiring decision was made by the senior employee on the interview committee at the district level. While it is true that those decisions were submitted to Tallahassee for ratification, in no instance was the district-level decision overturned. Petitioner did not establish that any of the interview panel members or candidate screeners was aware of his discrimination complaint or lawsuit at the time their respective decisions were made. Mr. Gowan was aware of Petitioner's lawsuit at the time of the interviews for position 2986, but Petitioner was not interviewed for that position. The greater weight of the evidence establishes that, while Petitioner was at least minimally qualified for the positions in question, Petitioner's lack of a college degree and his indifferent interview skills were the chief reasons for his failure to obtain any of the positions for which he was interviewed. The greater weight of the evidence establishes that the Department personnel conducting detailed screening of applicants considered only Petitioner's application and accompanying materials submitted by Petitioner in determining whether, or not Petitioner should be interviewed. Petitioner's applications were treated no differently than the applications of other candidates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Highway Safety and Motor Vehicles did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of October, 2006.
Findings Of Fact J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact As stipulated by the parties, the Findings of Fact are as follows: Petitioner was employed as a teacher by the following employers during the specified periods of time. Dixie County School System 1929-30 9 months 1930-31 9 months 1931-32 9 months Hardee County School System 1932-33 6 months 1933-34 8 months 1934-35 10 months 1936-37 9 months Petitioner was employed by the State Road Department from August 1, 1937, to October 31, 1939. Petitioner began serving as a Highway Patrolman on November 1, 1939, and continued until January 31, 1972. This service included a military leave of absence from March 1, 1943, through December, 1945. Petitioner retired from the Florida Highway Patrol on January 31, 1972. His service credit for retirement included the service with the State Road Department and the military service. On February 1, 1972, Petitioner began employment with the Department of Highway Safety and Motor Vehicles. He became a member of the Florida Retirement System on this date pursuant to the requirements of Chapter 121, Florida Statutes. Petitioner was a member of the Highway Patrol Pension System from November 1, 1939, through January 31, 1972. He has been a member of the Florida Retirement System from February 1, 1972, through the present. He has never been a member of the Teachers' Retirement System. The Teachers' Retirement System was created effective July 1, 1939. The terms of Chapter 321, Florida Statutes, governing the Highway Patrol Pension System, did not permit the Petitioner to receive service credit for his employement (sic) as a teacher from 1929 through 1937. If Petitioner is to receive service credit for his employment as a teacher, it can only happen pursuant to Section 121.021(19)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the decision of the Agency Head denying the Petitioner, J. Wallace Smith, the prior service credit requested be made final. DONE and ORDERED this 10th day of August, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Diane K. Kiesling, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303 Mr. J. Wallace Smith 1473 Marion Avenue Tallahassee, Florida 32303
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent's suspension of Petitioner was in compliance with Chapter 110, Florida Statutes, and Chapters 22A-7 and 22A-10, Florida Administrative Code. Whether the Respondent's suspension of Petitioner should be sustained.
Findings Of Fact C. R. Dykes is a State Trooper employed by Respondent, Department of Highway Safety and Motor Vehicles, in the Division of Florida Highway Patrol in Pensacola, Florida. By certified mail letter dated September 30, 1977, Trooper Dykes, the Petitioner, was notified that he was being suspended for twenty-four (24) hours (three work days) without pay by the Respondent, Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, for: Conduct Unbecoming a Public Employee and Negligence of Duty, as a result of your failure to accept witness subpoenas, and your contact with civil deputies of Escambia County, Florida . . . (Y)ou failed to accept witness subpoenas and repeatedly used profanity when discussing these subpoenas with civil deputies of Escambia County. Trooper Dykes appealed this suspension. Petitioner presented testimony and documentary evidence that at least on one occasion the Respondent did not appear for a contested hearing before the County Court of Escambia County after a witness subpoena had been issued for him and the subpoena was served on Respondent by leaving it with Operator Wise at the distribution center at the Patrol Station. The subpoena was not picked up by the Respondent and the Respondent informed the court that he had not received the subpoena. On July 6, 1977, Trooper Dykes was served with a Grand Jury subpoena by Lieutenant G. C. Wiggins and Sergeant W. A. Clark who supervised Trooper Dykes and the other State Troopers in the Pensacola District. Personal service was deemed necessary. Testimony was entered that because of previous difficulty in serving subpoenas upon Trooper Dykes in the customary manner by having the Troopers pick up their subpoenas from the Radio/Teletype Operators of the Pensacola Florida Highway Patrol Station, Deputy D. L. Roland, Escambia County Sheriff's Office, served a witness subpoena upon Trooper Dykes by serving it at Trooper Dykes' home through his wife, Mrs. Dykes, who accepted service with no apparent objections at 1:30 p.m. on Friday, July 22, 1977. Trooper Dykes called Sergeant Vince Seely, now Lieutenant Seely, thereafter at 4:00 pm, on July 22, 1977, to complain about the witness subpoena served at his home address rather than at the Florida Highway Patrol Station. Lt. Seely testified that during the telephone conversation Trooper Dykes yelled into the telephone, cursed Lt. Seely and the Sheriff's Office, made unfounded accusations, and displayed unprofessional behavior, attitude, and lack of cooperation. The Respondent contended that the telephone conversation was strictly between Sergeant Seely and the Respondent; the service of the subpoena was not urgent; that 1:15 p.m. is not a reasonable time of day for a person working from midnight to 8 o'clock in the morning; that the birth of a child was imminent; and that the subpoena could have been left at the station rather than have been served at his home. There was some evidence presented that the Respondent "gave the dispatchers a hard time who informed him they had a subpoena for him."
Recommendation Sustain the agency action of suspension of Petitioner for the period of 24 hours without pay. DONE and ORDERED this 6th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 6th day of April, 1978. COPIES FURNISHED: C. R. Dykes 644 Timber Ridge Road Pensacola, Florida 32504 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Kirkman Building Tallahassee, Florida 32304
