The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioner and the Intervenor are subject to the rules of the Respondent. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-3.0081, Florida Administrative Code. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption." Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code: (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows: What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows: Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.? Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing. . . . . In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made: The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved". The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved". The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter: The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution". The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . . The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee. The Notice of Proposed Rulemaking included the following "purpose and effect" clause: The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.
Findings Of Fact Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in administrative confinement, he did not receive any incentive gain time during that period. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months. In a prior period of administrative confinement, he claims he was not told why he was there officially. Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time, (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed. The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00 P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.
Findings Of Fact The Respondent, Lester Bishop, was employed as a Correctional Officer at Union Correctional Institution from March 20, 1981, to April 1, 1986. Union Correctional Institution (UCI) is a facility which houses inmates ranging in custody levels from minimum to close. In December of 1981, the Respondent was given a copy of the rules of the Department of Corrections. At this time he acknowledged that he was responsible for compliance with these rules. In late March and early April, 1986, the Respondent was scheduled to work the first shift at UCI beginning at 12:00 midnight and ending at 8:00 a.m.. The supervisor for this shift was either Lieutenant R. L. Weiland or Lieutenant S. E. Stafford, depending upon the day of the week. On March 23, 1986, the Respondent called Lieutenant Weiland at Union Correctional Institution at 12:30 a.m., requesting and receiving sick leave for the remainder of this shift. On March 24, 1986, the Respondent did not report to work, and he did not contact the shift supervisor to request leave. As a result, he was placed on unauthorized leave without pay status for this day. On March 25, 1986, the Respondent called his supervisor, requesting and receiving eight hours sick leave for this day. On March 26 and 27, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. March 28 and 29, 1986, were the Respondent's regularly scheduled days off. From March 30 until April 2, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. On April 2, 1986, the Superintendent of Union Correctional Institution, T. L. Barton, sent the Respondent a letter informing him that he had abandoned his position at Union Correctional Institution, and that he was dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Lester Bishop, from his position as Correctional Officer at Union Correctional Institution, for abandonment, pursuant to Rule 22A 7.010(2), Florida Administrative Code, effective March 25, 1986. THIS Recommended Order entered on this 9th day of December, 1986, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gilda H. Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986. Ernest A. Reddick, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lester Bishop, in pro per Box 1341 Starke, Florida 32091
The Issue The 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.
Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK 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 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/ In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of March, 2013.
