The Issue The issue is whether Respondent, Armor Correctional Health Service, Inc. (“Armor”), discriminated against Petitioner, Vadim Troshkin (“Petitioner” or “Mr. Troshkin”), based upon his age, national origin, race, or sex, in violation of section 760.10, Florida Statutes (2015).1/
Findings Of Fact Armor is an employer as that term is defined in section 760.02(7). Armor provides healthcare services in correctional facilities. Armor has a contract with the Jacksonville Sheriff’s Office (“JSO”) to provide healthcare services in correctional facilities in Duval County. Petitioner is a Caucasian male over the age of 40. His country of origin is Ukraine. Sometime in February 2018, Mr. Troshkin applied for an Advanced Registered Nurse Practitioner (“ARNP”) position with Armor at the detention facility adjacent to the JSO headquarters on Bay Street in downtown Jacksonville. There is no dispute that Mr. Troshkin is a licensed ARNP in the State of Florida. At the time Mr. Troshkin applied for the job, Vicky Hailey was Armor’s regional manager overseeing the Jacksonville detention facility. Ms. Hailey’s duties included interviewing and hiring applicants to work in the facility. On March 21, 2018, Ms. Hailey conducted an in-person interview with Mr. Troshkin at a job fair in Jacksonville. Ms. Hailey was impressed by Mr. Troshkin and made him a job offer on the spot. Mr. Troshkin was given a “provisional offer” to work for a salary of $87,000 per year. The offer was conditioned on Mr. Troshkin’s passing a JSO background screening. JSO mandates this security clearance for any Armor employee working at the Jacksonville detention facility. Mr. Troshkin accepted the provisional offer. Mr. Troshkin testified that he was especially eager to obtain this position because he lived in a condominium directly across the street from the JSO headquarters and the detention facility. He believed that his proximity to the workplace would be an advantage to him and to his employer. When Ms. Hailey made the provisional offer to Mr. Troshkin on March 21, 2018, she instructed him to contact Selena McClain, an administrative assistant at the Jacksonville detention facility, to schedule a time to be fingerprinted for the background screening. Ms. McClain met Mr. Troshkin at the Jacksonville detention facility on March 22, 2018, and escorted him to the JSO headquarters for fingerprinting. Ms. McClain’s job duties included coordinating the fingerprinting of applicants and corresponding with the JSO as to the status of the background screenings. Ms. McClain had no authority to make decisions regarding Armor’s hiring process. Background screenings are usually completed within 48 hours of fingerprinting. If issues come up during the screening, the process can take as long as a month. No employee of Armor has any control over the time taken by the JSO to complete its background screening process. On March 26, 2018, Sergeant Shaun Taylor of the JSO sent an email to Ms. McClain stating as follows: Vadim Troshkin’s background results came back with criminal history that needs to be reviewed by FDLE.[3/] I submitted the paperwork and I will let you know if they request anything further. On the afternoon of April 10, 2018, Ms. McClain received another email from Sgt. Taylor. This email read as follows: FDLE just called about Vadim Troshkin and stated that they are having problems getting records from San Diego. They asked me to reach out to see if he has any documentation that shows the disposition and severity for each of his charges. Thanks. Also on April 10, 2018, Ms. McClain had a discussion with Ms. Hailey as to delays in the background checks for Mr. Troshkin and two other candidates for employment. Both of the other candidates were female. Ms. Hailey made the decision to stop the screening process as to these three candidates and to withdraw their provisional job offers. Ms. McClain had no role in the decision, aside from providing information to Ms. Hailey. Ms. Hailey directed Ms. McClain to inform Sgt. Taylor that the JSO could stop the background screening process as to these three candidates. Ms. McClain sent Sgt. Taylor an email to that effect at 3:19 p.m., on April 10, 2018, a little more than 20 minutes after Sgt. Taylor’s email to her about the problems FDLE was having in obtaining records for Mr. Troshkin. At the hearing, Ms. Hailey testified that she needed to fill the ARNP vacancy at the Jacksonville detention facility as soon as possible. She had no way of knowing how long Mr. Troshkin’s background screening would take or whether it would result in a security clearance. Ms. Hailey had other qualified candidates who had already passed their background screenings, so she made the decision to withdraw the offer to Mr. Troshkin and give the ARNP job to one of the other candidates. Because of the JSO’s requirement that Armor employees pass a background screening, Mr. Troshkin was technically not qualified for the ARNP position at the time Ms. Hailey needed to fill it. Mr. Troshkin offered no evidence that any other applicant whose background screening was taking longer than expected, and whose position Armor deemed critical to fill, was treated differently than he was. Ms. Hailey testified that her reasoning was the same as to the two female candidates whose offers were withdrawn. She stated that withdrawing offers because of problems or delays with the background screening process was not uncommon. On April 10, 2018, at 3:59 p.m., Ms. McClain sent Mr. Troshkin, via email, a letter on behalf of Armor that read as follows: Dear Vadim, We regret to inform you that you failed to pass the Jail’s security clearance. Therefore, Armor is unable to extend an offer of employment. As always we wish you well in your future employment endeavors. Ms. McClain testified that this letter was generated via a template. She chose from a menu the language that most closely applied to Mr. Troshkin’s situation. Unfortunately, the language chosen from the menu left Mr. Troshkin with the understandable impression that he had failed the background screening, when in reality the screening had never been completed. Mr. Troshkin phoned Ms. McClain, who told him that his background screening report had not been received by Armor and therefore the company had decided to move on to another job candidate. Mr. Troshkin was perplexed. He testified that he had no felony or even misdemeanor convictions on his record. His only problem with law enforcement had been an “unpleasant incident” in California, which he referred to as an “infraction.” He stated that he had been unlawfully arrested but that the incident had resulted in no criminal conviction. The case had been closed and sealed. Mr. Troshkin declined to offer any more details about the California incident. Mr. Troshkin began thinking about his dealings with Armor. Ms. Hailey and the other persons he met during the interview process had been friendly and positive. Ms. McClain, however, had been difficult. At the outset of the fingerprinting process on March 22, 2018, the JSO’s fingerprint machine was not functioning properly. Mr. Troshkin and Ms. McClain were forced to make small talk for about an hour while the machine was being repaired. Mr. Troshkin testified that things were not going badly until he mentioned that he was a supporter of President Trump. Ms. McClain, who is African American, castigated him, wondering aloud why “you people” come here and support President Trump. In the context of the conversation, Mr. Troshkin took “you people” to mean white immigrants from Eastern Europe. Looking back at how events had transpired, Mr. Troshkin convinced himself that Ms. McClain was behind his rejection by Armor. He testified that he contacted an unidentified person with the FBI who told him that his background screening results had been sent to the JSO on the day after he was fingerprinted. Therefore, Ms. McClain must have done something to prevent the results from reaching Armor, or have lied about the results not reaching the JSO. Mr. Troshkin’s vague reference to his contact in the FBI cannot be credited. Also, Ms. McClain was in fact simply acting as a conduit, passing on information that Sgt. Taylor had provided to her, though Mr. Troshkin did not know that at the time. Armor’s role in the background screening process is entirely passive. The Armor employees who testified at the hearing did not know how JSO performs the background screenings or which databases the JSO consults during the screenings. JSO notifies Armor of any delays in the process and, ultimately, whether or not the applicant passes. Armor is not notified as to the reasons why an applicant fails a background screening. Armor is not given a report by the JSO reflecting the results of a background screening. Mr. Troshkin began sending emails to Ms. Hailey and other Armor employees.4/ The first email was sent on April 16, 2018, to Ms. Hailey and Jackie Mattina, an Armor employee who had participated in Mr. Troshkin’s interview at the job fair. The email stated that he had contacted “the Florida FBI background check up,” and the person he spoke with told him that he had been “cleared” on March 23, 2018. He stated that he could not understand why Ms. McClain “keeps saying that they never received any report and I do not pass that background check up.” Later on the same date, Mr. Troshkin sent another email to Ms. Mattina, complaining about the drug dealing that went on near his apartment, “right in front of sheriff office.” He stated that the area was “infested with drug dealers” who “give handshakes to cops sitting right there. But it is me with my infraction ‘disturbance of peace’ is the real threat to the whole justice system and society.” On April 18, 2018, Mr. Troshkin sent another email to Ms. Mattina that stated as follows: Good afternoon, I am still in disbelief that Mrs. McClain ruined my career in jail. It is right in front of my building. I would cover any shift you need coverage. And I am a good guy, no drugs, exercise daily 2 hours, spend 3 hours daily studying and reviewing material. Mrs. McClain windows probably facing my condo pool. If she changes her mind I am right there at the pool. She just need to open window and waive her hand. I looked through the requirement for the position and it says not to have felonies. I have only infraction. 6 years ago. Next year it will not even show in my background check up. Still crying, Vadim Troshkin At some point in this time frame, Mr. Troshkin sent a series of messages to Ms. McClain’s private Facebook account. The messages read as follows: [S]o you decided my fate not to have this job, even if I don’t have any felonies or misdemeanors. Pure racism and discrimination. I qualify for any federal job. I am a good person and good nurse practitioner. I am just tired when some prejudiced people discriminate against hard- working immigrants like me. [D]o you realize how many times cops fabricate complete lies and destroy lives of many people. Do you realize that according to statistics 20% inmates are in jail by fabricated charges. Maybe it is time to stop being a hypocrite and playing righteous as cops can fabricate anything on anybody including you or your family, friends etc. You do not have any idea how much I needed that job and I was going to give 200% of myself into this job. No, you just threw my opportunity away. And completely unfair and even illegally. As an immigrant from ex-Soviet union I experience discrimination mostly on daily basis. And that incident happened only because red-neck cop fabricated all. She, it was she tortured me for 6 hours. I will never forget her happy eyes when she was watching being in horrible pain. She fabricated all of it. [B]ut I forgot you are so righteous, almost saint. On April 22, 2018, Mr. Troshkin came to JSO headquarters and asked to speak with Ms. McClain. He testified that the person at the desk phoned Ms. McClain and that he could hear Ms. McClain screaming over the phone. Mr. Troshkin testified that he could hear Ms. McClain calling him a “criminal” and directing the JSO personnel to either evict or arrest him. Ms. McClain credibly testified that she felt threatened when Mr. Troshkin contacted her via her private Facebook account and she reported the contact to Ms. Hailey, who in turn contacted Armor’s legal counsel. In a letter dated April 18, 2018, Armor’s attorneys conveyed the company’s request that Mr. Troshkin cease and desist his communications to Armor’s employees. Mr. Troshkin complied with the attorneys’ request. Mr. Troshkin testified that he had no complaints about Ms. Hailey or the manner in which he was interviewed and given a job offer. He testified that he never felt that Ms. Hailey harbored any discriminatory intent towards him or ever discriminated against him. Mr. Troshkin testified that the only individual at Armor who discriminated against him was Selena McClain. Ms. McClain credibly testified she had no discriminatory animus towards Mr. Troshkin. She credibly denied that her initial conversation with Mr. Troshkin included any disparaging remarks about his race or national origin. She credibly denied screaming at a JSO employee over the phone that Mr. Troshkin should be arrested. She testified that she did not know his country of origin. As found above, Ms. McClain’s only role in this matter was to pass information from Sgt. Taylor to Ms. Hailey. The decision not to proceed with hiring Mr. Troshkin was made by Ms. Hailey alone and was based on Sgt. Taylor’s information, not on any misinformation allegedly provided by Ms. McClain. In summary, Petitioner offered no credible evidence that he was discriminated against on the basis of his age, national origin, race, or sex. Petitioner offered no credible evidence that he was qualified for the position, given that a mandatory condition for hiring Petitioner was that he receive a security clearance to work in the JSO’s Jacksonville detention facility. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Armor for his termination. Petitioner offered no credible evidence that Armor’s stated reasons for not hiring Petitioner were a pretext for discrimination based on Petitioner's age, national origin, race, or sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Armor Correctional Health Services, Inc., did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019.
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for treatment, and he also told medical personnel that he had fallen from his bunk. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached Ms. Florich in an attempt to get their stories straight. Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 27th day of April, 2006.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot, glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G) Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is, RECOMMENDED: That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 28th day of October, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Craig McWhorter 1131 Northeast 201 Terrace North Miami Beach, Florida 33179 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, 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 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
The Issue Whether Respondent violated Sections 943.13(7) and 943.1395(6), (7), Florida Statutes, and Rule 11B-27.011(4)(a), (c), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Reinaldo C. Pascual (Pascual), has been certified by the Petitioner, Criminal Justice Standards and Training Commission (CJSTC), as a corrections officer since June 17, 1988. His certificate number is 65593. On May 24 and 25, 1993, Pascual was employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (Corrections) as a corporal. He was assigned to the ninth floor of the pretrial detention facility. The ninth floor is the psychiatric ward. Pascual was working the 11 p.m. to 7 a.m. shift. On May 21, 1994, Eladio Vega appeared in court on a traffic matter after which the judge instructed him not to drive his vehicle because Mr. Vega had been drinking all night. Mr. Vega went to his vehicle after the court appearance. As a result of his actions, he was held in contempt of court and sentenced for a number of days in jail. Mr. Vega was incarcerated in the Dade County Jail and was placed on the fourth floor of the pretrial detention facility with the general inmate population. Late in the evening of May 24 or early morning hours of May 25, 1993, Mr. Vega began to exhibit some bizarre behavior, touching other inmates and changing the channels on the television set in the dayroom. Officer Gary Banks received complaints from the other inmates about Mr. Vega's behavior. Officer Banks went to Mr. Vega's cell and asked him to step outside the cell. Acting nervously, Mr. Vega complied but told Officer Banks that he had to get back in the cell because his son was in the cell. Mr. Vega's son was not in the cell. Thinking that Mr. Vega's behavior was strange, Officer Banks contacted his superior and requested authorization to take Mr. Vega to the clinic so that a nurse could take a look at him. Around 1:45 a.m., Officer Banks escorted Mr. Vega to the clinic. While Vega was in the clinic, he was pacing, sweating, and acting nervously. The nurse on duty determined that Mr. Vega should be transferred to the ninth floor until he could be evaluated by the day nurses. Mr. Vega was transferred to the ninth floor and placed in a cell with fifteen to twenty other psychiatric patients. The inmates complained about Mr. Vega's behavior, and Mr. Vega was transferred to cell 9-C-2, which is a single-man cell. The cell is one of five or six pods which are locked with no access to the dayroom. Each pod is approximately eight feet by six feet and contains a metal bunk, a toilet, and a sink. The only opening to the pod is a chow hole, which is a slot that is approximately two feet by one foot with a metal cover. The chow hole is used to serve food to the inmates. The door to the pod is made of steel with chicken wire enclosed by glass. The wall to the pod is transparent and made of glass. There are slots in the glass wall so that the inmates and officers can communicate. Mr. Vega began to bang on the cell walls, yelling and screaming. Officer Del Castillo was on duty on the ninth floor and went to see what was wrong with Mr. Vega. Officer Del Castillo tried to verbally calm Mr. Vega, but he did not succeed. Mr. Vega was trying to kick out the window in the cell, using a donkey kick by having his back to the window and kicking the window with his feet. Unable to quiet Mr. Vega, Officer Del Castillo went to his supervisor, Pascual, and told him about Mr. Vega's behavior and of his fear that Mr. Vega would harm himself. Pascual got the leg shackles and went to Mr. Vega's cell with Officer Del Castillo. Both officers unsuccessfully tried to calm Mr. Vega. Pascual decided to go into the cell and restrain Mr. Vega. As Officer Del Castillo opened the cell door, Pascual was standing directly in front of the door. When the door opened, Mr. Vega ran out, hitting Pascual in the abdominal area and knocking him toward the floor. Mr. Vega testified that he ran out of the cell because he thought the officers were trying to poison the air in his cell. Pascual managed to hit Mr. Vega in the face. Mr. Vega then turned and started to throw punches at Officer Del Castillo. None of Mr. Vega's punches found their mark. Officer Del Castillo was able to land a couple of punches on Mr. Vega's head and face. Having recovered from Mr. Vega's initial hit, Pascual hit Mr. Vega in the face. Mr. Vega fell backward and landed on the floor with his back to the cell wall. Mr. Vega hit the left side of his head on the chow hole in the cell. Pascual told Mr. Vega to turn onto his stomach and to put his hands behind his back. Mr. Vega did not comply but started to get up on his feet. Pascual, thinking that Mr. Vega was going to attack him again, grabbed Mr. Vega around the throat and tried to implement a lateral vascular neck restraint (LVNR). Mr. Vega was thrashing from side to side and leaned forward carrying Pascual upward on his back, piggy back style, until they lost their balance and fell forward hitting the metal bunk in the cell. Pascual was able to apply the LVNR, and Vega passed out for a few seconds. By this time Mr. Vega was bleeding profusely on the left side of his head. Pascual and Officer Del Castillo, placed handcuffs on Mr. Vega's wrists and shackles on his ankles. Mr. Vega was placed stomach down on a stretcher, which was between six to twelve inches from the floor. Pascual and Officer Del Castillo placed Mr. Vega in the elevator to take him to the clinic. While they were in the elevator, Mr. Vegal rolled off the stretcher at least two times. The stretchers were old and were not equipped with straps to hold the inmate down. When they arrived at the clinic, Nurses Kim Smith and Dorothy Ferguson were on duty along with Officer Lionel Cloney. Nurse Ferguson completed a medical addendum at 4:45 a.m. concerning Mr. Vega. She completed the section entitled "Specific description of any and all injuries" as follows: Bizarre behavior. Irrational. Out of control. Violent Behavior! Bleeding from R eye/Laceration in ear. Bright red-Large amt bleeding. Harmful to self & others. Nurse Ferguson completed the section of the medical report entitled "Treatment Rendered and/or Medical Recommendations" as follows: 4 point restraints. Harmful to self & others. Refer Ward-D Emergency. Ward D is a section of Jackson Memorial Hospital for inmates that need to go to the hospital for medical treatment. There are three ways to transport an inmate from the pretrial detention facility to Ward D: first, inmates with the most extreme emergencies are transported by Fire Rescue; second, inmates with less extreme emergencies are transported by ambulance; third, inmates needing routine medical care are transported by Corrections. The medical staff at the pretrial detention facility decides how the inmates will be transported to the hospital. In the case of Mr. Vega, the nurses determined that Mr. Vega would be transported to Ward D by Corrections. Officers Del Castillo and Pascual took Mr. Vega to the lobby of the detention facility to wait to be transported to Ward D. Officer Del Castillo went back to the ninth floor to write his report, and Pascual stayed with Mr. Vega. They were in the lobby approximately fifteen minutes before they left for the hospital. While Mr. Vega and Pascual were waiting in the lobby, Sergeant Alfonso Iglesisas observed Mr. Vega yelling and screaming. He also saw Mr. Vega roll off the stretcher two or three times. Pascual and Officer Marshall transported Vega to Ward D in a Corrections station wagon. Mr. Vega was placed in the rear of the vehicle, and Pascual sat in the front seat with Officer Marshall. The trip to Ward D took less than five minutes. Upon their arrival at Ward D, Pascual advised Corrections personnel there that he had a violent inmate in a four-point restraint and that he needed assistance to bring the inmate inside. Two or three officers assigned to work Ward D came out with a wheelchair and took Mr. Vega inside. Pascual accompanied Mr. Vega inside, where Mr. Vega was placed in a holding cell. Mr. Vega was still behaving violently and screaming. Pascual returned to the pretrial detention center. Mr. Vega had the following injuries when he was admitted to the intensive care unit hospital on May 26, 1993 at 4:04 a.m.: fractures of the orbit, a large bruise on his flank, fracture of the nasal bone, fracture of the second cervical vertebra, a cut over the left ear, a punctured eardrum, extensive bruising on his arms, deep abrasions on the right side of his abdomen and left side of his chest and abdomen, and a rotator cuff tear. Additionally he was suffering from alcohol withdrawal delirium and rhabdomyolysis, which is damage to the muscle. Rhabdomyolysis can be caused by trauma or alcohol withdrawal. In Mr. Vega's case, it could not be determined what was the cause of his rhabdomyolysis. The injuries noted are consistent with more than three blows to the head. The rotator cuff tear likely occurred when the officers were trying to apply handcuffs to Mr. Vega. All of Mr. Vega's injuries were sustained at approximately the same time and could have occurred within a time period of five to six hours. Mr. Vega's injuries were caused by blunt trauma sustained as a result of being punched or kicked. Mr. Vega spent 13 days in intensive care at Jackson Memorial Hospital. As a result of his injuries, he required oral-facial surgery. The rotator cuff tear will produce some pain in the shoulder after it has healed and may result in arthritis in the future. At the time of the incident at issue, a Use of Force/Levels of Resistance Matrix established by the CJSTC was in effect. The matrix serves "as a guideline for an officer to select effective reasonable and legal force options in a verbal or physical encounter." (Petitioner's Exhibit 6) The matrix has six resistance levels and six response levels. Resistance level four is active physical resistance and is defined as follows: A subject makes physically evasive movements to defeat an officer's attempt at control. This may be in the form of bracing or tensing, attempts to push/pull away or not allowing the officer to get close to him/her. Resistance level five is aggressive physical resistance and means the following: A subject makes overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. The highest response level on the matrix for active physical resistance is the use of intermediate weapons, such as a baton, side handle baton, aerosol tear gas, and flashlight. These weapons are used primarily to control a person. The highest response level on the matrix for aggressive physical resistance is incapacitation, which is defined as: Techniques that are intended to stun or render a subject temporarily unconscious, delivered with or without an impact weapon, such as a strike to a major nerve area. If a specific level of response is not available to an officer, the officer can go up one level to respond to the resistance. Neither Pascual nor Officer Del Castillo had intermediate weapons available at the time that Mr. Vega ran out of his cell and starting fighting the officers. The Metro-Dade Corrections and Rehabilitation does not use intermediate weapons. The LVNR is not included in or classified in the response levels of the Use of Force/Levels of Resistance Matrix. If it had been classified, it would come under incapacitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: Karen D. Simmons Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Teri Gutman Valdes Assistant General Counsel Dade County Police Benevolent Association 10680 Northwest 25th Street Miami, Florida 33172-2108 A. Leon Lowry, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent James F. Watson holds a certificate as a correctional officer, No.05-86-502-04 issued by petitioner Criminal Justice Standards and Training Commission; and has held it at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of Sergeant or Correctional Officer II. On May 25, 1988, Sergeant Watson came to Sergeant Pumphrey's assistance as he escorted an inmate, Samuel Collier, across a prison yard into the security complex. The inmate took a swing at Sergeant Watson, who grasped the inmate's right arm while Sergeant Pumphrey gripped his left. Seeing their difficulty, Inspector William T. Nobles brought a pair of handcuffs which Sergeant Pumphrey used to secure the inmate's hands behind his back. Inside the security complex, before they reached the hall onto which Major Faircloth's office opened, they encountered Major Faircloth and Ms. Parmer, a correctional officer who worked as an administrative lieutenant. Major Faircloth, both sergeants and the inmate started down the hall, and Lieutenant Parmer "stepped out of the way so they could go down the hallway." T.220. Although she came within three or four feet of the inmate, Lieutenant Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Testimony that Samuel Collier's T-shirt had "a little spot of blood," id., on it when he entered the security complex has not been credited. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Major Faircloth followed Messrs. Collier, Watson and Pumphrey into the office and closed the door. T.43. From the hall, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mail room officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mail room and flexed his swollen right hand. When the mail room officer inquired, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to Major Faircloth, then accompanied him as he went back into the office where the inmate, respondent and Sergeant Pumphrey remained. At some point Lieutenant Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed respondent's view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice," (T.113) or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered in respondent's presence. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x-rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. That day, respondent Watson filed a written report, Petitioner's Exhibit No. 8, reciting that he and Sergeant Watson had used force against Samuel Collier to restrain him on the way to the security complex. Concerning events in Major Faircloth's office, the report stated: When the inmate would not sit down and after Major Faircloth had ordered him to be placed in the chair, I got him by the right arm with both my hands and we placed him in the chair, holding to him. Inmate Collier['s] resistance caused him to twist out of the chair, falling to the floor. I then grabbed for his arm once again and Sgt. Pumphrey got the other arm and we pulled him from the floor, placing him back in the chair. I used only a minimum amount of force to control the situation and prevent injuries. Petitioner's Exhibit No. 8. Respondent's report mentioned force Sergeant Pumphrey used in helping him get Samuel Collier into the chair in the major's office and recited that "Lt. Chesnut placed the rag across the inmate's mouth, to prevent him from spitting on any one else." Petitioner's Exhibit No. 8. But respondent's report omitted any mention of the force Major Faircloth had used against Samuel Collier. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, respondent falsely denied under oath that he had seen Major Faircloth hit Samuel Collier and injure his hand. Petitioner's Exhibit No. 4, p.14. Inspector McLain had authority to administer the oath in the course of his official duties, and did administer an oath to respondent before interrogating him on June 28, 1988.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate as a correctional officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 3-15, 17, 18, 20, 21, 22, 24-31 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 are immaterial as to respondent Pumphrey. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times Major Faircloth hit Collier. Sergeant Sheppard saw him slap Collier only once. But the evidence clearly and convincingly showed that Major Faircloth landed additional blow(s), causing his knuckles to swell, and that respondent saw this. Respondent's proposed findings of fact Nos. 1-7, 11, 13-17, 20-21, 28-29, 32, 40 and 43 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 8, 9 and 10, it was not clear that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed finding of fact Nos. 45-46 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed findings of fact Nos. 18 and 19, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. Respondent's proposed findings of fact No. 22, 24, 30, 31, 33, 38, 39, 42, 44, 47 and 48 pertain to subordination matters. Respondent's proposed findings of fact Nos. 23, 24, 25, 26, and 27 were not escorted by credible evidence. With respect to respondent's proposed finding of fact Nos. 34, 35, 36 and 37, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed finding of fact No. 41, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Stephen W. Foxwell Florida Police Benevolent Association 300 East Brevard Street Tallahassee, Florida 32301 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
