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 Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
The Issue The issue in this case is whether the Respondent unlawfully and knowingly possessed a controlled substance and, if so, what disciplinary action should be taken.
Findings Of Fact On July 3, 1986, the Respondent was certified by the Criminal Justice Standards and Training Commission, and was issued Certificate No. 03-86-502- 05. Later that year, the Respondent was employed as a Correctional Office at the Broward Correctional Institution. The Broward Correctional Institution is a state prison that houses female prisoners. The Respondent's duties included working inside the prison and working on the perimeter posts. While on perimeter post, the Correction Officers, including the Respondent, would sit in a small car with a loaded 12-guage shotgun and a .38 caliber revolver. The primary function of the perimeter post is to observe the fences of the prison to insure that there is no unauthorized entry into or exit from the prison. On several occasions the Respondent openly discussed with other Correctional Officers the fact that the Respondent used marijuana. On at least one occasion, the Respondent told another Correctional Officer that she (the Respondent) had reported for duty inside the prison with marijuana "joints" in her purse. On another occasion a Correctional Officer who relieved the Respondent on perimeter post smelled what seemed to be the odor of marijuana smoke and observed what appeared to be the remains of a marijuana cigarette. On yet another occasion the Respondent offered to provide marijuana to another Correctional Officer who worked on the same shift. One of the Correctional Officers who worked with the Respondent became concerned about what she had heard and seen regarding the Respondent's use of marijuana and reported her concerns to higher authority at the prison. As a result of such report, on the evening of November 16, 1989, two prison officials approached the Respondent during her break. At that time the Respondent was sitting in her personal vehicle in the prison parking lot. The prison officials requested and received permission to search the Respondent's vehicle. A Marlboro cigarette box containing what appeared to be a partially smoked, hand-rolled marijuana cigarette was found underneath the driver's seat of the Respondent's vehicle. The hand-rolled cigarette found in the Respondent's vehicle tested positive for marijuana. The Respondent was arrested on a charge of introduction of contraband into a state correctional institution. The Respondent later pled guilty and was found guilty of the lesser included charge of possession of marijuana, less that 20 grams.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statues, and Rule 11B- 27.0011(4), Florida Administrative Code, and imposing a penalty of revocation of the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of August 1990. MICHAEL M. 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 31st day of August 1990.
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 1/ The parties to this proeeeding have stipulated that Petitioner has standing as an inmate at Union Correctional Institution to challenge the provisions of Union Correctional Institution Operating Procedures No. 82-69. The parties have further stipulated that all of the provisions contained in the aforementioned operating procedure which are not self-limiting are intended to be either System or institutionwide in their impact. As mentioned above, Respondent and Petitioner have stipulated into evidence the challenged operating procedures and any relevant rules contained in Chapter 33, Florida Administrative Code. 2/ On or about December 15, 1976, Union Correctional Institution Operating Procedures No. 82-69 was initially issued. These procedures were revised on September 13, 1982, and were reviewed and continued in an operational status on May 23, 1983. The challenged operating procedures were issued ". . . to establish criteria for the placement of inmates in an Administrative Confinement status and to establish institutional policy and procedures applicable to such confinement." The operating procedures purport to be issued pursuant to authority contained in Sections 944.28 and 945.21, Florida Statutes, and Chapter 33-3, Florida Administrative Code. In the briefing process of this proceeding Respondent has conceded that the following portions of the challenged operating procedure constitute unpromulgated rules: That portion of 82-69.7A on pages 4 and 5 dealing with personal property which an inmate will be permitted to retain in his possession while in administrative confinement; 82-69.7B concerning inmate bank withdrawals; 82-69.7C dealing with canteen privileges; 82-69.7D dealing with library privileges; 82-69.7F concerning clothing for inmates in administrative confinement; 82-69.7K concerning religious material available to administrative confinement inmates; 82-69.7M concereing visiting privileges; 82-69.7U governing notarizing of legal papers and materials; and 82-69.8 governing restrictions to be imposed on privileges granted to inmates by virtue of the operating procedure. Further, Petitioner challenges in his memorandum Sections 82-69.4, entitled Criteria for Administrative Confinement, 82-69.70, entitled Medical Procedures, and 82-69.7Q, entitled Inmate Count procedures. Any sections of the operating procedures not argued by Petitioner in his Proposed Findings of Fact and Conclusions of Law have been considered abandoned. Section 82-69.4 of the operating procedures, entitled Criteria for Administrative Confinement, provides as follows: Inmates may be placed in Administrative Confinement who pose an immediate threat of violence or disruption to themselves, other inmates, Department employees, or the institution generally, or as a result of threats of physical harm from other inmates, or other good reasons. Reasons for placing inmates in Administrative Confinement are further defined as follows: Awaiting Disciplinary Action: When the evidence clearly suggests that to allow the inmate to remain in open population would present a clear danger to other inmates or to the security of the institution. Placing inmates in Administrative Confinement to await a disciplinary hearing is permitted only when there is a danger to the welfare of the inmate or other inmates in the population, or when the security and good order of the institution is in jeopardy. Pending Trial: For a crime committed in the Department when the facts clearly suggest that to allow the inmate to remain in open population would present a clear danger to the inmate, other inmates, or to the security of the institution. Custody Risk: Cases when the facts clearly indicate the inmate cannot be housed in the general inmate population. Inmates who, after removal from disciplinary confinement, clearly appear to the Classification Team to be a potential assaultive or disruptive factor if placed in the inmate population and who, therefore, cannot reasonably and safely be returned to the inmate population. For protection of the inmate or other inmates. The aforecited provisions of Section 82-69.4 of the operating procedures are a virtual recapitulation of the requirements currently contained in Rule 33-3.081(1) and (4) Florida Administrative Code. The requirements of the challenged operating procedures neither create, add to, nor detract from the rights of inmates at Union Correctional Institution. Section 82-69.7 0.1. of the operating procedures provide as follows: 1. Health Appraisal Prior to placement in confinement the inmate shall be escorted to the outpatient clinic for health appraisal. (In cases of combative or assaultive behavior, the appraisal shall be done as soon as possible after being confined.) Inmates who are acutely ill or whose mental condition or behavior shows sudden, rapid change (which may be due to the ingention[sic] of stimulants, drugs, alcohol, medications, or other toxic sub- stances, whether taken legally or illegally) who exhibit acute personality changes or other markedly bizarre behavior, or who have exhibi- ted a recent, serious intent to harm themselves, shall not be confined until the inmate's health status has been evaluated by the medical professional or paraprofessional on duty. If it is feasible to initially confine such persons in the clinic for observation, the medical staff member on duty will monitor the health status of the inmate in confinement at least every two hours, and more often as indicated in individual cases. The health appraisal must include as a minimum, the following: A brief review of health record Determine any medication the inmate is currently on that mustbe continued while in con finement, and essential scheduled health appointments for call-out. Vital signs, including temperature, blood pressure, pulse and respiration Determine any health complaints Perform physical examination as necessary based especially on any noted complaints For inmates in Medical Grades III or IV, determine any necessary continuity of care while in confinement An overall statement as to the fitness of the inmates' confinement will be based on the findings above No such specific procedure dealing with health appraisal was contained in either Chapters 944 or 945, Florida Statutes, or Chapter 33, Florida Administrative Code. These procedures are mandatory, and must be completed before an inmate may be placed in administrative confinement. The remaining provisions of Section 82-69.7 0 relate to Respondent's internal management of routine sick call, emergency medical procedures, medication, and inmate visits by the institution medical director. These sections do not purport to create or otherwise affect any individual inmate right. Section 82-69.7Q, entitled Inmate Count Procedures, provides, in part, that: The special nature of inmates confined on Administrative Confinement require maximum supervision and control. Consequently, there will be a total of six counts con- ducted throughout the day . . . . This section of the operating procedures goes on to establish the times and procedures for conducting the six inmate counts: an 8 a.m. response count; 12 noon response count; a 4:30 p.m. response count; a 9 p.m. master count; a 12 midnight body count; and a 4 a.m. body count. The only act required of inmates in this section is that they present themselves at their cell door and respond with their inmate number when their name is called at the 8 a.m., 12 noon, and 4:30 p.m. response counts.
