The Issue Whether Respondent Employer is guilty of an unlawful employment practice pursuant to Section 760.10, Florida Statutes, by discriminating against Petitioner based upon her sex (gender). Specifically, whether Petitioner was sexually harassed in the work place and/or unlawfully terminated for refusing sexual favors.
Findings Of Fact Respondent is a corporation engaged in the utility construction business. Respondent employs approximately 150 people for a variety of tasks. At all times material, Respondent's president, Bill Beers (male), had at least a partial ownership interest in the company. He currently "owns" the company. Petitioner is female. Petitioner was initially employed with Respondent as an accounting assistant on July 22, 1998. Petitioner had earned a high school diploma and an accounting certificate from Lake Technical Center. She has completed approximately one year of junior college. Jerry Schinderle (male), Respondent's Vice-President of Finance and its Comptroller, made the decision to hire Petitioner. He was in charge of Respondent's accounting department in which Petitioner was employed. Bill Beers did not participate in, or have input for, the decision to hire Petitioner. Mr. Schinderle promoted Petitioner to an accounts payable position on or about August 21, 1998, when another female employee was either terminated or quit. With her promotion, Petitioner received a raise in pay. In her new position, Petitioner's duties were to handle accounts payable, job costing reports, and job tracking. From Petitioner's date of hire until approximately October 1999, Mr. Schinderle was Petitioner's sole immediate supervisor. At all times during this period there were a total of four employees in the accounting department, including Petitioner, Mr. Schinderle, and two female employees. From approximately October 1998 to October-November 1999, Petitioner and Bill Beers engaged in a consensual and intimately sexual romantic relationship. While they were dating in 1998 and 1999, Petitioner gave Mr. Beers a kiss in the morning in his office on the ground floor of the employer's building, before she reported to work in her second floor office. However, it is undisputed that Petitioner and Mr. Beers never had sexual relations at the office. During the period from October 1998 to October-November 1999, their sexual activities occurred only after the work day was over or during their mutual lunch hours in Petitioner's home, in Mr. Beers' home, or in a car. In 1999, Deborah Goodnight (female) was hired from outside the company as Mr. Schinderle's Assistant Comptroller. As such, Ms. Goodnight became Petitioner's immediate superior, and Mr. Schinderle remained in a supervisory capacity over the entire accounting department, which continued to be made up of four employees, counting himself, Ms. Goodnight, Petitioner, and one other female employee. Petitioner complained herein that Mr. Beers promised her the promotion and that she should have been promoted instead of Respondent's hiring Ms. Goodnight from outside the company. Mr. Beers testified that he had refused Petitioner's request to intervene on her behalf with Mr. Schinderle about the promotion. Mr. Schinderle confirmed that Ms. Goodnight was hired solely by himself. Ms. Goodnight had a four-year bachelor's degree in accounting and had been comptroller of another company previously. Ms. Goodnight's qualifications for the position for which she was hired clearly exceeded those of Petitioner. Thereafter, until Petitioner was laid off by Respondent on June 1, 2001, there continued to never be more than a total of four employees in the accounting department: Mr. Schinderle, Deborah Goodnight, Petitioner, and one other female employee. Most of Respondent's employees became aware that Petitioner and Mr. Beers were dating when Mr. Beers escorted Petitioner to a company Christmas party (year unspecified). Petitioner personally told Ms. Goodnight that they were dating. However, no employee who testified was aware of any unprofessional or inappropriate conduct by Mr. Beers with Petitioner in the office at any time while she was employed by Respondent. Sadly, Petitioner's and Mr. Beers' relationship was rocky, and in October or November 1999, Mr. Beers initiated a break-up of their consensual sexual relationship. Petitioner initially claimed that she initiated the break-up but ultimately admitted that she and Mr. Beers mutually agreed to terminate their consensual sexual relationship at that time. Petitioner and Mr. Beers have different views of who pursued whom between November 1999 and February 2000, but both agree that in February 2000, they resumed a sexual relationship outside the office. By each protagonist's account, during a large part of the period from February 2000 to late summer or the autumn of 2000 (see Findings of Fact 16-17), there were periods of good relations and periods of bad relations between the two of them. There were break-ups, one-night stands, and reconciliations at various times. It was, at best or worst, an "on-again-off- again" romance, but there still was no unprofessional or improper conduct observed by anyone at the office. Any sexual liaisons occurred outside the office as previously described. It is undisputed that in July 2000, Mr. Beers left a note on Petitioner's vehicle in which he expressed his desire to terminate their relationship once and for all. Mr. Beers and Petitioner disagree as to whether or not they had sexual relations after July 2000. Petitioner claimed that Mr. Beers importuned her at every possible opportunity, in or out of the office, to have sex with him and had sex with her as late as January 2001. Mr. Beers denied any pursuit of Petitioner and denied any sexual contact with Petitioner after July 2000. Both Petitioner and Mr. Beers have some confusion of dates between what happened at their November 1999 break-up versus their July 2000 breakup, and it is possible to interpret part of Mr. Beers' testimony to the effect that there was a sexual encounter between them as late as November 2000, but upon the greater weight of the credible evidence as a whole, it is found that their sexual relationship ended once and for all in July 2000.. In August 2000, Mr. Beers began dating another woman. In February 2001, he became engaged to her, and she moved into his home. They were married in July 2001. Petitioner claimed to have been harassed by co-workers at Mr. Beers' instigation from the beginning of her employment in 1998 to its end on June 1, 2001. She further alleged that from February 2000 until her termination on June 1, 2001, she strongly felt that she had to comply with Mr. Beers' requests for sexual favors or she would receive some "punishment" in the workplace or lose her job. Likewise, she believed that any advantage she gained in the employment field also was a "gift" from Mr. Beers either to woo her for future sexual favors or to reward her for immediately past sexual favors. Some of Petitioner's allegations in this regard are less than credible simply because she claimed that she was "punished" even while she was engaging in admittedly consensual sex with Mr. Beers from October 1998 to November 1999. Other of her specific allegations of receiving quid pro quo advantages and punishments from Mr. Beers after February 2000, were either not credible on their face or were affirmatively refuted as set out infra. Testimony from other employees and record evidence indicated that Respondent's employment practices were uniform towards all employees, including Petitioner. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers, she received the benefit of being assigned a company cell phone, but that when she refused to perform sexual favors for Mr. Beers that benefit was taken away. The better evidence shows that soon after they started dating in 1998, Mr. Beers loaned Petitioner a company cell phone, assigned to himself, which he let her use for approximately one week, because she had confided to him that the man that she was living with was abusive and she was afraid of him. Also, when Petitioner or anyone else handled the payroll, that person had the use of a company cell phone. Petitioner was unable to show that at any time during her employment from 1998 to 2001, there was any permanent, or even lengthy, assignment of a company cell phone to her, or that such an assignment was taken away from her. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers she received the benefit of being assigned a company car for personal use. Petitioner was able to establish only that, occasionally, during their first consensual relationship in 1998-1999, Mr. Beers loaned her the use of his company-issued car and also provided her with his company-issued credit card with which to pay for gassing-up that car for both of them to use. While this may constitute a misuse of the employer's car and card by Mr. Beers, the greater weight of the credible evidence is still contrary to Petitioner's unsupported testimony that a company vehicle was assigned to her and then removed from her custody due to her refusal of sexual favors to Mr. Beers. The testimony of several witnesses on this point was corroborated by a list of vehicles and the names of employees to whom those vehicles had been assigned. Petitioner's name does not appear on this list. The list further supports a finding that the majority of vehicles owned by Respondent employer were trucks and other types of heavy equipment which were assigned to male employees working in the field, as opposed to ordinary vehicles assigned to any office staff, either male or female. Like all Respondent's other employees, Petitioner had access to a company pool vehicle which any employee was allowed to use for company business or for personal use when his or her own vehicle was being repaired or was otherwise out of commission. This vehicle was never individually assigned to any employee. Petitioner claimed that during and after her sexual relationships with Mr. Beers, and continually until her 2001 termination, he directed other employees to purposefully harass her, withhold information or invoice sheets, or create other road blocks to her successfully performing her job duties or completing her assignments at work. Petitioner's testimony is particularly incredible on this point because she specifically contended that several of the instances when other employees harassed her or made her job more difficult took place during the time she admittedly was engaging in a consensual relationship with Mr. Beers in 1998-1999. Also, no other evidence or testimony corroborated Petitioner's analysis in this regard for any time period. No employees were affirmatively shown to have intentionally tried to prevent Petitioner from being able to perform her job duties at any time, including 2000-2001. Moreover, at no time did Petitioner report any harassment by co-workers to Ms. Goodnight or Mr. Schinderle. Petitioner was only occasionally reprimanded for not doing her job well, and she continued to be employed and to receive regular raises throughout her 1998-2001 employment Petitioner contended that Mr. Beers described in lurid detail their sexual activities to other male employees, who then accosted her with suggestive comments. There was no corroboration for this allegation. Although it is probable that rough-and-tumble male employees speculated about the relationship between their boss and Petitioner and it is further probable that they occasionally goaded Petitioner with their speculations, there is no corroboration, whatsoever, that Mr. Beers discussed Petitioner with co-workers or encouraged any bad behavior toward Petitioner by them. The comments, if they occurred, certainly were not shown to be pervasive behavior in the workplace. Petitioner also incredibly claimed that, in general, other employees were instructed not to talk to her both during and after the end of her sexual relationship with Mr. Beers. Other employees testified that they were not aware of any instructions at any time by Mr. Beers or anyone else that they should refuse to speak with Petitioner. Even Petitioner conceded that Ms. Goodnight was reasonably cordial to her at all times. Petitioner specifically claimed that one particular employee, Glen Busby, was instructed by Mr. Beers not to speak to her and was "punished" for speaking with her by having a company vehicle taken away entirely or replaced with an older, poorer quality car. She conjectured that Mr. Busby was also terminated by Respondent as a result of befriending her. Contrariwise, Mr. Busby testified credibly that he was never instructed by Mr. Beers or his supervisors not to speak to Petitioner. Mr. Busby stated that he had left Respondent's employment for approximately a year in order to care for his mother, who was dying. He also related that when he returned to work for Respondent, he was not assigned a vehicle such as he had previously been assigned, because he came back as a project manager, working primarily in the office, as opposed to returning as a construction site employee who needed a heavy duty vehicle on a jobsite. He acknowledged that while he had been in the field, several company vehicles had been assigned to him and that these were frequently replaced with newer, better- conditioned vehicles. Petitioner was unable to show that any professional training element of her employment was dependent on whether she did, or did not, provide sexual favors. The greater weight of the credible testimony, plus records and calendars, demonstrated that Petitioner received the same internal accounting training as other accounting department employees, mostly from Mr. Schinderle on a rotating basis. Mr. Schinderle testified, and Petitioner acknowledged, that she also was provided with specialized accounting programming training by an outside computer company representative. Petitioner described one instance, apparently in late 1998, possibly while the consensual relationship with Mr. Beers was still "on," when she took off from work for approximately two weeks. She passed the first week as a Mayo Clinic outpatient for kidney problems and passed the second week in her home or in hospital emergency rooms, due to postoperative problems. She claimed that during these two weeks, she was unable to have sexual relations with Mr. Beers and refused to have sex with him when he personally delivered her paycheck to her home after the first week. She claimed that he had promised her that she would get her check for the second week, too, but when she refused him, he refused to pay her for the second week that she was unable to work. Actually, Respondent's records show that Respondent had paid Petitioner regular wages for ten days, but she was required to reimburse the employer for the tenth day she was off work that was not covered by saved sick leave or another leave policy. Although Petitioner showed some abuses of company policy regarding breaks and smoking committed by individual employees, the greater weight of the credible evidence is that such company policies were equally applied and enforced among all employees, including Petitioner. Petitioner characterized a bonus she got in February 2000, the first month of the February 2000-July 2000 reconciliation, as a quid-pro-quo reward from Mr. Beers because she had agreed to resume her relationship with him. However, in fact, it was company policy to distribute annual bonuses to everyone in the company in February of each year. The amount paid out by the company depended on the amount authorized by auditors based on the prior year's business profit. Petitioner received an annual bonus each February she worked for Respondent, but the amount varied, according to the company's profit, for Petitioner and for all other employees. In February 2000, all employees received their annual bonuses. Petitioner and two other members of Respondent's office staff, who were not having an affair with the company president, received identical amounts of $2,500.00 annual bonus based on their function within the company. It is undisputed that on January 19, 2001, after their final break-up, Petitioner approached Mr. Beers in his office and indicated that she was having difficulty accepting the end of their relationship. She had apparently anticipated that they would eventually marry, and was struggling with the fact that Mr. Beers was romantically involved with the woman he had begun dating in August 2000. Petitioner asked Mr. Beers to pay her money so that she could go away and find other employment. Petitioner contends that this was a request for Mr. Beers to pay her the bonus that Respondent annually paid its employees each February. Mr. Beers interpreted Petitioner's January 19, 2001, request for money as a demand that he pay her to quit her job and get out of his life. He refused to accept her offered letter of resignation. Petitioner claims that on January 26, 2001, Respondent advertised as vacant her position as "account payable specialist" in the newspaper, but no date appears on the supporting exhibit; Petitioner was not terminated; and no replacement for Petitioner was hired. At all times material, Respondent had a sexual harassment policy in place which required a victim of sexual harassment to report such harassment to his/her supervisor or the company president. Petitioner received a copy of the policy when she was hired in 1998. Petitioner admittedly did not complain to her immediate superior, Ms. Goodnight, at any time. Although Petitioner claimed she reported harassment by Mr. Beers, the company president, to Mr. Schinderle in late 1998, just prior to her first break-up with Mr. Beers, Mr. Schinderle recalls no such report. Although Mr. Schinderle testified that if Petitioner had reported any alleged sexual harassment by the company president he would have brought the complaint to the attention of the company's then-majority stock-holder, Mr. Schinderle is less than credible on that single point. However, Petitioner's "resignation letter" of January 19, 2001, may be considered notification to Mr. Beers and Respondent employer of most of the allegations raised in this case. Sometime in February of 2001, Petitioner received her annual bonus, like any other employee. It was based on the earnings of the company in the year 2000. Every employee on the second floor of Respondent's office got the same amount. On February 23, 2001, Petitioner received a raise from $13.00 to $13.50 per hour for taking on the additional responsibility of adding a new phone system. The appropriate paperwork was filled out for this raise, and witnessed by Mr. Schinderle and Mr. Beers. Given the foregoing, plus Petitioner's admission that she voluntarily took on the additional phone duties in order to get the raise, Petitioner's characterization of the raise as her reward for giving Mr. Beers sexual favors is not credible. Sometime in March 2001, Petitioner showed up at Mr. Beers' home intoxicated. Mr. Beers' fiancée and his son were residing in the home. Petitioner asked to come in, and Mr. Beers asked her to go away and not make a scene because he did not want to have to call the police. One Sunday a few weeks later, Petitioner approached Mr. Beers' fiancée and his mother in WalMart. Petitioner's characterization of this conversation varies, but it is clear that what she said was intended to shock the fiancée and damage Mr. Beers' relationship with fiancée. Petitioner left a message on Mr. Beers' telephone before his mother and fiancée could return home from WalMart. Her message was to the effect, "I just caused you a bunch of problems." Petitioner came to Mr. Beers' office at Respondent's place of business on the following Monday morning and gloated. Mr. Beers angrily ordered her out of his office, but he did not terminate her. Petitioner testified that she believed that Mr. Beers ordered all of Respondent's employees to be tested for drugs on March 19, 2001, in an effort to "catch" her because she had confided to him back on November 25, 2000, that she had smoked "pot" (marijuana) in order to relieve her distress over their deteriorating relationship. At first, Petitioner claimed that she was too frightened to show up for the test. Later, she claimed to have been "escorted" to the drug testing center by two other employees. The greater weight of the credible evidence is that company policy was to do drug testing of every employee when that employee was hired and then drug test selected employees at random intervals, but that the policy had been only loosely followed. Of the employees who testified on the subject, only Mr. Schinderle recalled being drug-tested upon his date of hire in 1993. Ms. Goodnight and others had never been tested. It appears that Bill Padgett, Respondent's head of security, had previously done random drug testing in a very random manner, so all employees who had not previously been tested for drugs, including Ms. Goodnight, Petitioner, and the other female employee in the accounting department, were tested on March 19, 2001. Petitioner rode, as a matter of convenience, in the same car to the drug-testing site with the other two females employed in the accounting department. Petitioner was not singled out at that time. In fact, all employees, even Mr. Padgett and Mr. Beers, were tested. Petitioner passed the drug test and was not laid off in March 2001. Petitioner kept a log of personal notes and summarized them into a diary. This item, which may have been edited and copied over several times, reflects that Petitioner connected every life event, however small, to Mr. Beers. According to Petitioner's notes from March 20, 2001, Petitioner was "an emotional wreck," and she thought that Mr. Beers wanted to "get rid of" her and was "finished with me now." In her accounting post, she had seen a $5,000.00 check Mr. Beers had written on "Monday" and speculated whether or not it was for an engagement ring. Mr. Beers and his fiancée had become formally engaged in February 2001. (See Finding of Fact 17.) Although Petitioner testified that on March 21, 2001, Mr. Beers arranged for her to get additional company medical and/or dental benefits so as to make good a promise to her in return for her sexual favors, several of Respondent's employees testified more credibly that Petitioner was given the same health and other benefits as all other employees in her "Hourly B" class, throughout her employment with Respondent. Moreover, the greater weight of the credible evidence is that all of Respondent's employees were offered an opportunity to sign-up for additional health benefits and that Petitioner had the same opportunity for this benefit as every other employee did, and that she had, in fact, received the benefits for which she signed-up. At the beginning of the second quarter of the year 2001, in approximately April or May, Respondent made the decision that each department would have to cut staff and overhead expenses due to deteriorating business conditions and the cancellation of a lot of expected work. Mr. Beers gave each department head, including Mr. Schinderle, the sole discretion to make the decision as to who would be laid-off, based upon the position the department head believed would be most easily and efficiently eliminated. Mr. Schinderle was department head for the accounting department. He made the decision to lay-off Petitioner effective 6/1/2001. Mr. Schinderle did not receive any input or guidelines from Mr. Beers except to lay-off the one employee he could best do without. Mr. Beers had no discussions with Mr. Schinderle regarding the decision to lay-off Petitioner. Mr. Schinderle testified that he felt Petitioner's position could be the most easily eliminated because the Assistant Comptroller, Deborah Goodnight, was able to perform the functions of her own position and the functions of Petitioner's position. In fact, Ms. Goodnight was capable of doing the work of either Petitioner or the other female employee, but she was not consulted by Mr. Schinderle. On or about June 1, 2001, Petitioner and three other employees were laid-off from their positions with Respondent. Each of the other employees was from a different department and the decision to lay-off each of them had been made by different department heads than Mr. Schinderle. Mr. Schinderle listed Petitioner as eligible for re- hire. Petitioner never called back to Respondent in any attempt to be re-hired after her lay-off. After Petitioner was laid-off, there remained only three (not four) employees in Respondent's accounting department. The accounting department was able to effectively and efficiently function with the reduced three-person staff and did not acquire additional staff for approximately four years, until May 2005.
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 and Charge of Discrimination. DONE AND ENTERED this 22nd day of March, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John Vernon Head, Esquire John Vernon Head, P.A. 138 East Central Avenue Howey-in-the-Hills, Florida 34737 Stephen W. Johnson, Esquire Stephanie G. McCullough, Esquire 1000 W. Main Street Leesburg, Florida 34748
Findings Of Fact On March 7, 1977, Smith completed and forwarded to the Board his application for licensure as a licensed practical nurse pursuant to the provisions of Section 464.21(1), Florida Statutes. Question eleven of that application asks whether the applicant has ever been arrested and convicted for an offense other than a minor traffic violation. Smith answered the question yes and in the space provided for an answer in the application detailed his arrest and conviction for driving while indoxicated in the State of Florida. No other notation is made on the application form regarding any other arrests and convictions. However, Smith did in fact have another arrest and conviction occurring in January, 1964, in the State of Michigan. At that time, Smith was found guilty of the crime of taking indecent and improper liberties with a female child under the age of sixteen, that being a violation of Section 750.336, Michigan Compiled Laws Annotated. The trial court found that Smith took his eleven year old niece to bed with him and "placed his penis between the girl's thighs and started to masturbate over her." Had Smith committed the same act in Florida for which he was convicted in Michigan in 1964, he could have been charged under Section 800.04, Florida Statutes, proscribing lewd, lascivious or indecent assault or acts upon or in the presence of a child under the age of fourteen. Smith argued that his conviction of a felony in Michigan should not automatically be equated to the commission of a felony offense in Florida because the acts which he committed in Michigan may not have been viewed in Florida at that time as "lewd, lascivious or indecent" as defined by Florida case law. Such definition is found in Boles v. State, 27 So.2d 293 (Fla. 1946), wherein the Court stated that the words lewd, lascivious and indecent are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator. And the Court in Buchanon v. State, 111 So.2d 51 (Fla. 1959), defined these terms as meaning an unlawful indulgence in lust, eager for sexual indulgence. Smith argues that in the area of sexual attitudes and mores universal agreement is impossible and that local community standards must be applied to determine the nature and quality of any given act. This argument is specifically rejected. While such an argument may have application to the expression of ideas, it is inapposite to Smith's conduct in Michigan which had the potential of causing severe emotional damage to another person. Smith's conduct was without doubt lewd, lascivious and indecent. In defense of the charge of fraud or deceit in the procuring of his license, Smith introduced into evidence what purports to be a rough draft of a supplement to his application in which the details of his Michigan conviction are set forth. Smith and members of his family testified to events which, if true, would establish that Smith had intended to include the supplement to his application and that it had been inadvertently lost. While it is not concluded as a matter of fact that Smith actually intended to file a supplement to his application, the evidence introduced by Smith is sufficient to raise doubt and to cause the Hearing Officer to conclude that evidence of Smith's fraudulent intent, when viewed in light of the evidence as a whole, is insufficient to establish fraud or deceit.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that during the course of a doctor-patient relationship the Respondent violated Sections 458.329 and 458.331(1)(k), Florida Statutes, by engaging in sexual misconduct with a patient. The specific factual allegation is that during the course of the doctor-patient relationship the Respondent fondled the patient's genitals or otherwise engaged in inappropriate sexual contact with the patient.
Findings Of Fact Based on the stipulations of the parties, on the exhibit received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Department of Professional Regulation is the state agency charged with regulating the practice of physicians pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. (Stipulation, Tr. 5) At all times material hereto, the Respondent, Richard P. Emerson, M.D., has been a licensed physician in the state of Florida, having been issued license number ME 0005011. (Pet. Ex. 1, Tr. 40-41, 137-139, 175, 210)2 At all times material hereto, the Respondent has held himself out as a psychiatrist. (Pet. Ex. 1, Tr. 45, 139, 155, 175, 210). The patient whose treatment forms the gravamen of this case is a 26-year-old male with a long history of emotional problems. The patient has had psychiatric problems since he was two and a half or three years old and was diagnosed as autistic at age five. He has since been diagnosed as schizophrenic and paranoid schizophrenic. He has suffered from acute schizophrenia since early childhood. A paranoid schizophrenic is enormously suspicious; he feels that someone is going to harm him. The patient has been hospitalized at least twelve times for treatment of emotional problems. (Tr. 39, 45, 64, 139, 181, 196-197, 200) The Respondent treated the patient off and on at different times between 1974 and 1984. A patient-physician relationship existed between the Respondent and the patient at all material times. (Tr. 40-41, 137-139) The patient's medical history has been marked by violent outbursts against family members, including choking his sister. His mother expressed concern that someone was going to get killed. The patient has also experienced hallucinations, delusions, sexual preoccupation, sexual concerns, and sexual gender problems. His illness has included fears that people were out to get him and that people whose conversations he could not clearly overhear were talking about him and plotting against him. (Tr. 74-75, 143-144, 196-197) On February 21, 1984, the patient was hospitalized under the care of Dr. Joel Grossman. Dr. Grossman observed psychotic symptoms and diagnosed the patient as acutely schizophrenic. Psychosis is a disturbance of thinking, feeling, and behavior in which the individual may confuse his own inner world with the outer world of reality. Acute schizophrenia is an exacerbation of the psychotic symptoms resulting in a change in one's thoughts, feelings and behavior to the extent that the individual experiences difficulty in distinguishing reality from fantasy. An individual suffering from an acute schizophrenic episode, as was the patient in this case at the time of his hospitalization in February of 1984, is less likely to be able to accurately recount the truth and to accurately distinguish between things that really happened and things that are fantasies. (Tr. 181-183, 189-190, 196-197) The patient, who is the sole accusing witness in this case, is not a credible witness. His illness interferes markedly with his ability to perceive accurately and to accurately recount the truth. The patient contradicted himself on several occasions during the hearing. He was often reluctant to answer questions. He also admitted during the hearing that he had given false answers to some questions during his deposition just to get the deposition over with. The patient has an admitted tendency to give false answers when he is in a stressful situation. The patient was obviously under a great deal of stress during his testimony at the hearing. (The findings in this paragraph are to an extent based on the entirety of the relevant testimony at the hearing. The transcript references which follow are only examples and are not exhaustive. Tr. 55, 57-59, 61-62, 77-85, 89-91, 93, 95, 97-98, 100, 108, 110-111, 113-118, 122, 132, 125, 135, 181-182, 190, 196-197, 199, 200-205, 209, 212, 223, 225, 226) The patient presently suffers from a paranoid type of schizophrenic disorder. He has suffered from this condition for a number of years. The essential features of this disorder include the following: prominent persecutory or grandiose delusions or hallucinations with persecutory or grandiose content. In addition, delusional jealousy is present. Associated features include unfocused anxiety, anger, argumentativeness, and violence. In addition, there may be doubts about gender identity or fear of being thought of as a homosexual or being approached by homosexuals. The impairment in functioning may be minimal if the delusional material is not acted upon since gross disorganization of behavior is relatively rare. Similarly, effective responses may be preserved. Often a stilted formal quality or extreme intensity in interpersonal interactions is noted. (Tr. 196-197, 201-203) The patient has exhibited signs of having gender identity doubts, fear of being thought of as homosexual, or of being approached by homosexuals. Since 1980 the patient has had fears of being homosexually attacked. In 1974 the patient masturbated himself against the furniture in the Respondent's waiting room while he was alone. It is in 1974 that the patient alleges that the Respondent rubbed or scratched his back with his shirt on at the patient's request in order to relax him; (Tr. 61, 73, 131-132, 196-197) From approximately January of 1982 until the spring of 1985, the patient and a male friend named Dale engaged in a homosexual relationship. During this three-year period, Dale massaged the patient's back on numerous occasions and fondled the patient's genitals on numerous occasions. The patient exhibited his fear of being thought of as homosexual during his testimony at the hearing. He initially denied having had a sexual relationship with Dale and exhibited some confusion regarding the relationship which was clearly sexual in nature. The patient continued to maintain that his relationship with Dale was not sexual in nature, while at the same time admitting that he permitted Dale to fondle his genitals throughout their three-year relationship. (Tr. 78, 84-85, 151) The patient has also had difficulties with insomnia since 1980 Fears and thoughts of suicide have plagued him. He has had sexual fantasies and fantasies that he was the center of attention. On such occasions, the patient sometimes called the Respondent to talk about his family problems and his concerns and upsets. The patient also called his friend Dale when he was feeling suicidal, fearful, and alone. (Tr. 110-111, 129-130, 148) The relationship between the patient and his friend Dale bears a striking resemblance to the relationship the patient alleges that he had with the Respondent. Dale massaged the patient's back, the patient called Dale when he was feeling fearful, suicidal, and lonely. Dale picked the patient up in his car and took him places. The patient allowed Dale to fondle his genitals on numerous occasions. The patient and Dale also embraced and kissed. (Tr. 85-86, 88-89, 128-130, 151) One of the patient's hospitalizations was from June 29 to July 18, 1983. During his testimony he at first insisted that this hospitalization was because of the Respondent and denied it had anything to do with his having broken up with Dale. Later in his testimony the patient admitted that his break-up with Dale was one of the problems that led to his hospitalization. This incident is another manifestation of the patient's confusion between his friend Dale and the Respondent. (Tr. 113, 118) The patient has a hostile or acrimonious attitude toward both the Respondent and the Respondent's son. He feels that they are both "sick." (Tr. 122-123) The most logical explanation of the basis for the patient's allegations against the Respondent is that the allegations result from the patient's fantasies and delusions about the nature of his relationship with the Respondent. The patient is a severely disturbed schizophrenic who distorts what he perceives. His allegations are fantasies that are nothing more than the ramblings of a very seriously psychotic individual. The patient built up a sexual delusional system about the Respondent which manifested itself as early as the 1974 masturbation incident. There is also a transference situation in which the patient has confused the nature of his relationship with his friend Dale with the nature of his relationship with the Respondent. In sum, the allegations are most likely a fabrication from the patient's insanity. (Tr. 197, 199-203, 204-205, 211-212)
Recommendation On the basis of all of the foregoing it is recommended that the Board of Medical Examiners enter a final order dismissing the Administrative Complaint against Dr. Richard P. Emerson for failure of proof. DONE AND ORDERED this 30th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 30th day of December, 1985.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Donald Alvin Jones, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 15, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1901, so that Petitioner might secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes, (1977). Petitioner presently resides in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, theRespondent has exhausted treatment in the affiliated programs. Indeed, the Petitioner participated in the program at the North Florida Evaluation and Treatment Center, a sex offender program. This treatment commenced in October, 1977, and lasted for a period of approximately six months, after which time he was returned to the committing court and later placed in the Florida State Hospital forensic unit. The primary program for mentally disordered sex offenders in the Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions and beginning in January, 1980, was assigned to intensive assertion training. In this connection, his group therapy sessions now involve a group which is more confrontation oriented. In the course of the group therapy sessions he has only personally discussed himself one time in his most recent group and that participation discussion occurred on February 3, 1981. The discussion related to the Petitioner's interest in a talent show at the hospital. The Petitioner has learned about his childhood experience while in the program but he will not relate his sexual history or discuss his daily activities. The patient carries a diagnosis of inadequate personality and sexual deviation, namely pedophilia and has subnormal intelligence. His behavior is guarded and evasive and on balance his cooperation and participation is superficial. In the last six or eight months of his treatment, the Petitioner has not made satisfactory progress. The progress that has been achieved in the program relates to the patient's willingness to deal with others more readily, thereby getting along with others and creating a better feeling about himself. The patient has not broken the rules of the Forensic Unit lately but when pushed by others will become angry. The Petitioner has been involved in wood and musictherapy, is a member of the Jaycees and attends dances and dance classes. In January, 1980, the Petitioner was presented to a staff disposition conference consisting of members of the treatment team in the program for mentally disordered sex offenders and it was determined that the patient should be retained for a period of time. Again, in September, 1980, the patient was presented to the conference and it was determined that the hospital had exhausted the treatment possibilities for the Petitioner. Through a staff conference of the heads of the various sex offender programs in the Department's overall system held in October, 1980, it was the unanimous opinion of those members that treatment possibilities for the patient had been exhausted. Although the Petitioner continues to express some motivation about participation in the sex offender program and feels that he needs more assistance, needs a structured environment, further participation in a sex offender program offered by the Respondent would not be sufficiently beneficial to cause the Petitioner to remain in the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is hereby, RECOMMENDED That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Donald Alvin Jones and that said Donald Alvin Jones be returned to the committing court for further proceedings. DONE and ENTERED this 27th day of February, 1981, in Tallahassee, Florida. CHARLES C. ADAMS 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 27th day of February, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.? Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section 120.56 F.S.?
Findings Of Fact At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology. At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules. On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities". Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is: Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly . . . commit any act or engage in any conduct which would violate any state statute, rule, directive or policy statement.' Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public.' Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal. Florida Administrative Code Rule 33-4.003(25) states that a first offense of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal. The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows: Sexual Harassment requires two elements: The alleged conduct must be of a sexual nature, must be unwelcome and unwanted. Sexual harassment may be any of, but not limited to, the following: * * * continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome; * * * prolonged staring or leering to [sic] a person; * * * 32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows: * * * O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when: Submission to such conduct is either explicitly or implicitly a term or condition of employment; or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows: Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal. * * * The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed. PERC's recommended order also applied the foregoing provisions. At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte. Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding. DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined. Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules". Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part: Responsibility for Conduct of Employees, Inmates and Others. No Administrator, Superintendent, Officer-In-Charge, Supervisor, or other employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or policy statement . . . . Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates. Rule 33-4.002(4), F.A.C., provides in pertinent part: (4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . . Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule. The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment. The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department). The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency: Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment. The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency. Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides, If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules. Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C. Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee. Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming". Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment. However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C. He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act. The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy. Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra. Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
