The Issue The issue is whether Respondent discriminated against Petitioner based on her race and/or age in violation of Section 760.10, Florida Statutes(2005).
Findings Of Fact Petitioner is an African American female. She was over the age of 40 when Respondent hired her and when she resigned her position as Respondent’s sales associate. Respondent is an employer as defined by the Florida Civil Rights Act of 1992, as amended, Sections 760.01-760.11 and 509.092, Florida Statutes (2005)(FCRA). Dillard’s Inc., purchased numerous department stores owned by C. J. Gayfer and Company in 1998. Respondent, which is located in the Cordova Mall, Pensacola, Florida, is one of those stores. Respondent employs 200 to 250 sales associates. Approximately 48 percent of Respondent’s employees are over the age of 40. About 90 percent of Respondent’s employees are older than Petitioner. Additionally, 28 percent of Respondent’s employees are African American. Respondent hired Petitioner on May 11, 1999, as a sales associate in the Cordova Mall Store. Because Petitioner did not apply for a specific position, Respondent assigned her to the men’s fragrance department/work center with a starting rate of pay at $8.00 per hour. Respondent also provided Petitioner with health insurance benefits. Petitioner was an experienced retail salesperson when Respondent hired her. However Petitioner had no experience or training in selling men’s fragrances. Throughout Petitioner’s employment with Respondent, Beth Winter was the store manager. Ms. Winter is responsible for the store’s profitability and merchandise. She also manages the area sales managers (ASM) of the various work centers. Ms. Winter reports directly to Linda Sholtis, Respondent’s District Manager. Ms. Sholtis is responsible for 18 of Respondent’s stores. In December 2004, Respondent was in the process of preparing its payroll budgets for the following year. Respondent’s executive management made a business decision to reorganize some of its work centers. Specifically, Respondent decided to use its smaller work centers to train new sales associates, to keep the lower pay rates in the smaller work centers, and to move the sales associates in the smaller work centers, who were earning higher rates, to other work centers that could support their higher rates. High rates in a small work center means that Respondent has less hours to allocate to the department, resulting in less hours available for customer service. Respondent made a business decision to move the higher rates into the larger work centers that could support those rates. As a non-commissioned sales associate, Petitioner was subject to Respondent’s Sales-Per-Hour (SPH) program. Respondent applies the SPH program to all non-commissioned sales associates and to some commissioned sales associates working in ladies shoes. The SPH program is based on objective criteria described below. The SPH program has “standard goals” and “raise goals” that are based upon an employee’s hourly rate. The standard goal is the dollar volume of sales an employee is required to average for each hour worked to support his/her pay. The raise goal represents the dollar volume of sales an employee should average per hour during a review period to justify a pay increase. To determine the goals, each work center is assigned a “selling cost” (SC). Respondent’s executive management determines the SC for each work center in each store. The SC for a work center reflects the percentage of sales that Respondent determines should be the maximum amount budgeted for payroll expense for a particular work center. SC calculations are based on historical sales and marketing data. The SC and the SPH goals for sales associates vary among work centers based on sales history. For example, in the Cordova Mall store, the men’s fragrance work center has a SC of 12 percent, meaning that Respondent does not want the payroll budget in that department to exceed 12 percent of the dollars earned from its sales. The men’s fragrances department is a very small work center. It has a higher SC because it does not have as much sales volume as the larger work centers. To derive an employee’s SPH goals, an employee’s hourly wage is divided by the SC percentage for the employee’s work center. Accordingly, as an employee’s hourly wage increases, the employee’s SPH goal increases. Further, as the work center’s SC percentage increases, an employee’s SPH goals decrease. An employee’s age and race are not factored into the sales goals derived under Respondent’s SPH program. The program is a mathematical formula centered around an employee’s hourly rate and the SC of the employee’s assigned work center. Before the above-referenced reorganization took place, there were four sales associates assigned to men’s fragrances. Petitioner was the only Africa American. Lois Thomas and Cathy Carlisle were Caucasian. Marie Aceval was Hispanic. All four associates were over the age of 40. In December 2004, Petitioner was one of Respondent’s top sales associates. She was the best sales person in men’s fragrances and received the highest rate of pay. She was a very aggressive salesperson. Over the course of Petitioner’s employment, her salary increased substantially from $8.00 to $17.00 per hour as a result of her ability to sell men’s fragrances and merchandise outside of her work center in men’s clothing. Men’s fragrances was a small work center that was not budgeted for a sales associate to earn $17.00 per hour. As of December 2004, Petitioner had a pay rate of $17.00 per hour and men’s fragrances had a 12 percent SC. Therefore, Petitioner’s individualized SPH standard was $142.00. On the other hand, a sales associate assigned to men’s clothing would have a SC of 6 percent and an SPH of $283.00 if paid $17.00 per hour. When assigned to men’s fragrances, Petitioner’s substantially increased her productivity by selling goods from the men’s clothing work center. This significantly inflated Petitioner’s performance because she received double-credit for the sales outside of her assigned area. Petitioner had less volume to sell in men’s fragrances (with a SC of 12 percent) to meet her SPH, whereas, employees in men’s clothing (with a 6 percent SC) had a larger volume of merchandize to sell. When Petitioner sold merchandize in men’s clothing, she would still get the men’s fragrances 12 percent SC credit. Petitioner sold more merchandize outside her area than any other employee in men’s fragrances. Petitioner understood that her primary duty was to sell goods in men’s fragrances. However, about 25 percent of Petitioner’s sales were from the men’s clothing work center. In December 2004, Respondent did not have a policy prohibiting sales associates from selling goods from other work center. Respondent did not write employees up for such sales. Respondent understood that a certain amount of such sales were necessary for customer convenience. However, Respondent discouraged out-of-area sales. Respondent continued to give Petitioner annual raises because there was no specific prohibition against her selling merchandize from men’s clothing. Petitioner actively went out of her work center to get customers, knowing such sales would inflate her rate. On several occasions, Lisa Bell, the ASM for cosmetics and the direct supervisor for men’s fragrances, advised Petitioner and other associates about the need to limit sales outside of men’s fragrances. Early in December 2004, Ms. Sholtis visited the Cordova Mall store. Ms. Sholtis met Ms. Winter and Ms. Bell in Ms. Bell’s office. During the meeting, Ms. Sholtis explained that employees in the smaller work centers, who are earning more than their assigned work center’s support rate, would be moved to better areas in the store that could support their pay rates. Ms. Sholtis also explained that some of the smaller work centers would be used as training areas. Specifically, men’s and ladies’ fragrances, junior’s clothing, ladies’ accessories, and children’s clothing would become training grounds for new associates. The company-wide plan for all stores included moving associates to better areas in the store after a training period. Ms. Sholtis reviewed a computer screen that identified employees by last name and pay rate. The screen did not disclose the employees’ race and age. Ms. Sholtis, without any knowledge of Petitioner’s race and age, selected her as the first employee to be reassigned from men’s fragrances. Ms. Sholtis selected Petitioner solely because her pay rate was the highest at $17.00 per hour. The men’s fragrances work center could support a rate of $10.00 or $11.00 per hour. All of the employees in men’s fragrances earned more than that amount. Therefore, all four sales associates had to transfer out to another area. Respondent transferred them in rank order from highest to least paid. The same reorganization involving Caucasian employees took place in the children’s work center and the ladies’ accessories area. When Ms. Bell questioned the timing of the transfers, Ms. Sholtis explained that the reorganization was a corporate- wide decision. Respondent was transferring associates in ladies’ and men’s fragrances in other stores. The transfers were affecting associates with up to 15 years of experience. In some cases, all of the employees in a work center would be transferred. Ms. Sholtis informed Ms. Bell that transfers should not be delayed until after the holidays. According to Ms. Sholtis, Petitioner’s immediate transfer would give her first choice of the best available positions in the store. Moreover, Petitioner’s compensation would not be affected by transferring before Christmas. At the time that Respondent made its decision to reorganize, the company could have instituted a policy that allowed Petitioner and other employees to remain in men’s fragrances and limit the credit they received for sales outside their work center. However, Respondent decided instead to transfer its most experienced associates to larger areas where they could maintain their high rates of pay. In any event, Petitioner would have considered it a demotion to have her pay reduced to $8.00 per hour, even if she had been allowed to stay in men’s fragrances. By the time of the hearing, Respondent had adopted a policy that limits the credit employees receive on sales outside their work center. In December 2004, Ms. Winter met with Petitioner to explain the decision to move her out of men’s fragrances due to her high rate of pay. Ms. Winter explained that the best areas in the store to support her pay rate would be the shoe department and cosmetics. Over a period of about two weeks, Ms. Winter provided Petitioner with several options for reassignment. Ms. Winter explained the benefits of each area, but specifically and repeatedly recommended ladies’ shoes and cosmetics, especially the Estee Lauder makeup counter. Respondent had associates making the highest rates of pay in those areas. At the time of the hearing, Respondent had four people in ladies’ shoes making $17.00 per hour or higher. One employee made $21.53 per hour. An employee in ladies’ shoes does not need years of experience to develop a client base in order to achieve a high rate of pay. One employee in ladies’ shoes was able to earn $15.81 per hour after seven months. Respondent transferred this employee from the junior department to shoes with no special knowledge about shoes and no customers. Another example of not needing time in ladies’ shoes to be successful involved an employee hired two weeks before Petitioner resigned in September 2005. The employee achieved an hourly pay of $18.46 after 15 months in ladies’ shoes. The record indicates that African American and other minority employees earn rates of pay as high or higher than $17.00 in ladies’ shoes. It is undisputed that some of the minority employees earning these high rates are older than Petitioner. Employees in the shoe department may earn a commission in addition to their SPH pay rate. They have a support rate but can earn higher raises if they support their rate. They can also request to raise their rates. Therefore, all associates in shoes may not have the same base rates, but they all earn 9.5 percent as commissions. The SC in shoes is also 9.5 percent. The average SPH goal for employees in shoes is $120.00. Employees earn the commission on sales made after they reach their SPH goal. Petitioner rejected the opportunity to transfer to shoes. She did not want to perform the work required to sell shoes. Petitioner was aware that one employee in her late 40s or early 50s earned approximately $17.00 in cosmetics. Ms. Bell wanted Petitioner to work in cosmetics because it would mean that she stayed in Ms. Bell’s work center. Nevertheless, Petitioner rejected the opportunity to work in cosmetics because she did not want to put make-up on people. After refusing a job in cosmetics or shoes, and not being permitted to transfer to a training work center, Petitioner’s remaining choices were in men’s clothing or women’s clothing. Petitioner elected to work in the ladies’ designer/bridge work center where Respondent sold women’s better clothes. Petitioner believed that she had a chance to support her pay rate in that area. Ms. Winter advised Petitioner not to transfer to the ladies’ designer area because it would be difficult for her to support her rate. Petitioner did not take Ms. Winter’s advice. Ms. Winter informed Petitioner that her transfer would not result in an immediate reduction in pay rate to the minimum rate paid to new hires. Rather, Petitioner would be paid her $17.00 rate regardless of her sales performance for six months. After that time, Petitioner’s rate, as well as the other transferees’ rates, would be adjusted based upon sales performance during the second three-month period and the new work center’s SC. Respondent required every transferring employee to sign a conditional transfer agreement setting forth the payment terms. The only option besides signing the conditional transfer agreement was to resign. In accordance with Respondent’s reorganization plan, Respondent used men’s fragrances to train new associates. Some of the new employees were younger than Petitioner. For example, Ms. Bell hired Renee McCurley, a Caucasian female to fill Petitioner’s position at $8.00 per hour. Ms. McCurley was 19 or 20 years old. Ms. McCurley trained in men’s fragrances for four or five months before transferring to ladies’ fragrances. Respondent subsequently fired Ms. McCurley because she was unable to meet her hourly goals after her transfer. On or about December 21, 2004, Respondent transferred Petitioner to ladies’ designer clothes. She was aware that the women’s work center had a SC of 6 percent. Brenda Maldon was the ASM over women’s clothing. Ms. Maldon became Petitioner’s direct supervisor. Ms. Maldon is African American and older than Petitioner. Petitioner’s annual review period ended in June 2005. However, Respondent gave Petitioner a review in December 2004 pursuant to policy that requires a review when any employee leaves his or her assigned area. The December 2004 monthly report indicated that Petitioner had not satisfied her SPH standard goal at that time. After several months, Petitioner was fourth in sales among about 30 people in the entire women’s clothing work center. She ranked number one in sales in the ladies’ designer area. Petitioner’s successful performance in the ladies’ designer area was not simply the result of the holiday season, which ended in January 2005. Petitioner ranked number one in her area, and number four in the entire work center, during the time between December 2004 and February 2005. January and February usually are slow retail months. Respondent reviewed Petitioner performance again in April 2005. As set forth in the conditional transfer agreement, employees who have transferred to another area receive a three- month review. During the second three-month period of her reassignment, Petitioner’s sales decreased. She took long weekends off from work, thereby missing the busiest sales time of the week. She ranked number 18 in sales in the entire women’s clothing work center. However, she still ranked number one in sales in the ladies’ designer area. Petitioner’s sales performance during the second three months after the transfer could not support her $17.00 pay rate. Instead, her sales performance supported a pay rate of $7.95 per hour. At that time, due to the impact of a hurricane, no one in the ladies’ designer area supported their rates. Everyone was off their sales goals. Although Petitioner ranked number one in sales in her area, the decision that she was unable to support her $17.00 pay rate was based on the mathematical formula set forth in the conditional transfer agreement. Petitioner’s $7.95 pay rate was derived by dividing her actual SPH of $136.00 by her SHP goal of $291.00 and multiplying the product by her pay rate of $17.00. Petitioner’s $7.95 pay rate became effective July 31, 2005. Of all the employees transferred out of men’s fragrances, Petitioner received the largest pay reduction after six months because she had the highest pay rate before the transfer. Respondent applied the same formula and calculations to every employee who transferred out of a work center. For example, Ms. Thomas, who continued to work for Respondent at the time of the hearing, received a reduction in her pay rate after transferring from men’s fragrances to another work center from $13.45 to $8.60 per hour. There is no persuasive evidence that Respondent denied Petitioner training in the ladies’ designer area. Additionally, Petitioner never complained to Respondent’s management that she was experiencing a hostile work environment because of her race and/or age. Petitioner requested and received a leave of absence on August 8, 2005. She resigned on September 1, 2005. Petitioner advised Respondent’s staff that she was resigning due to the stress and anxiety related to her “demotion” and her resulting financial problems. Petitioner implied that she had another job that she did not want to discuss. During the hearing, Petitioner testified that she resigned because she “could no longer afford to drive 90 miles per day.” After leaving her job with Respondent, Petitioner received about $6,000.00 in unemployment compensation. Six months after her resignation, Petitioner began working for another employer, earning $9.00 per hour without any medical or other benefits. Two months later, Petitioner quit her job again; she was unemployed for approximately three months without unemployment compensation. In August 2006, Petitioner accepted employment with Wal-Mart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of February, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2007. COPIES FURNISHED: Christopher E. Varner, Esquire Christopher E. Varner, P.A. 6056 Doctor's Park Road Milton, Florida 32570 Lori R. Benton, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Post Office Box 60 Orlando, Florida 32802-0060 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denis Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent's license as a talent agency in the State of Florida should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 468, Florida Statutes. Whether Respondent violated Section 468.402(1) (s), Florida Statutes (1989), by soliciting business, either personally or through an agent or through any other person, through the use of fraud, deception, or otherwise; the use of misleading statements; or the exercise of intimidation or undue influence.
Findings Of Fact At all times material to the Administrative Complaint, Respondent was a licensed talent agency in the State of Florida, license number TA 0000086. Respondent is the owner and operator of La Moda International Modeling Agency, Inc. Mr. Douglas Dobbs, (hereinafter: Dobbs), in April 1989, presented himself to Respondent's agency, in an undercover capacity for the publication "Florida Celebrity," to determine whether recent consumer complaints to the publication were valid. Dobbs and Patricia Ann Hardy, (hereinafter: Hardy) represented themselves as people new in the industry who were looking for modeling jobs. During Respondent's interviews with Dobbs, Hardy was present on both occasions. Respondent told Dobbs and Hardy that he, the Respondent, discovered Jared and Kolbie Boyle and that he sent the Boyle children to New York on loan to another agency. Respondent further stated that he was the Boyle children's agent for many jobs and booked Kolbie Boyle for the cover of "Vogue Enfants", a French magazine. As a result his agency earned about $35,000.00 from the publication of the photograph. The Respondent also indicated that the Boyle children were receiving residual income for past work. The Respondent advised Dobbs and Hardy that the Boyle children were listed with La Moda, and the Respondent caused to be printed newspaper articles that represented that the Boyle children were listed by La Moda. The Respondent, or his employees, also represented in newspaper articles published regarding the Boyle children, that the children were going to model in Los Angeles and Germany. Jared and Kolbie Boyle are the young children of Lori Boyle. In 1985, her daughter, Kolbie, took modelling classes at La Moda Modeling studio where she met Respondent. Thereafter, both children were taken to New York where they participated in several photography sessions. These sessions were arranged by the children's mother through the Rascal's agency and Kidds Etc., both of New York City. In 1988, Kolbie Boyle appeared on the cover of Paris Vogue Enfants, a French magazine, for which Kolbie was paid $50-75. This booking was arranged by the mother through the Irene Marie Agency of Miami. No residual or other payments from Respondent or anyone else have been received as a result of this cover. The Boyle children are not, and never have been, under contract as models with the Respondent or his agency. The only contract signed by Lori Boyle, on behalf of the children, was an enrollment agreement for modeling classes for Kolbie in 1985. Lori Kolbie did grant Respondent permission to use the photographic likenesses of her children for general promotional purposes. However, she did not grant permission for Respondent to indicate that the children were going to Los Angeles or Germany for modeling assignments. Lori Boyle was contacted by Dobbs for verification of the information received by Dobbs and Hardy from the Respondent regarding the children. The Respondent gave Dobbs and Hardy a "clientele list" of agencies that the Respondent claimed to do business with on a regular basis. The "clientele list" actually contained the names of agencies that Respondent was trying to do business with. Respondent has stopped using the "clientele list" because people misunderstood its purpose. Respondent has had contact with several foreign country agencies on the "clientele list" and received books from several agencies as well as correspondence regarding possible association with Respondent. The Respondent, however, has worked with one agency. Respondent is a young man who is a resident alien from Iran and speaks with a distinct accent. During his testimony at the hearing, he had difficulty using correct tenses and phraseology in English. The Respondent submitted his new paper work and/or handout, for new talent as mitigation evidence to demonstrate his intent to conform to state laws. The Respondent's new forms, however, do not include the words "Talent Agency" as required by law. The Respondent also submitted his new contract as mitigation evidence to demonstrate the Respondent's desire to conform to state laws, however, the contract also does not include the words "Talent Agency" on the contract as required. The Respondent has been previously disciplined in Case Nos. 85998 and 92871 by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Professional Regulation impose a civil penalty of $400.00 and suspend the Respondent's license to practice as a talent agency for four (4) months. It is further recommended that Respondent's license remain suspended until such time as the Respondent demonstrates that his contract and handouts comply with Chapter 468.412(6), and Rule 21-19.010(2), and Rule 21-19.010(4)(b), Florida Administrative Code. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of July, 1990. APPENDIX The following constitutes my specific rulings, as provided in Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8 (in part), 9,10,11,12,13 (in part: 2nd and 3rd sentences rejected as hearsay), 14. Rejected as hearsay: paragraph 15. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,15 Rejected as against the greater weight of the evidence or irrelevant or argument: 4,5,6,6(#2) ,7,8,10,11,12,13,14 16,17,18,19,20. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Perlmutter, Esquire 500-B North Harbor City Boulevard Box 361293 Melbourne, FL 32936-1293 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Mildred Gardner, Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues in this case are whether Respondent, as City Manager for the City of Opa-locka, violated Section 112.313(6), Florida Statutes, by (1) using his position to engage in sexual, or romantically-oriented, comments, behavior, and/or invitations to female City employees; (2) having a subordinate's car repaired using City resources; (3) soliciting a personal sexual or romantic relationship with a female job applicant; and (4) if yes, what penalty is appropriate.
Findings Of Fact Respondent served in the Marines for two years and in the Florida Department of Law Enforcement (FDLE) for thirteen years. He then served as Police Chief of Florida City for two years before resigning to become the Executive Officer in Charge of Investigations at the City of Lauderhill Police Department. After two or three months he quit that job, and conducted private investigations until he was hired by the City of Opa- locka. Respondent was appointed acting City Manager for the City of Opa-locka (City/Opa-locka) on Friday, June 9, 1995. He was appointed City Manager effective July 28, 1995, and remained in that position until May 1997. All City employees, other than those in the City Attorney's Office, ultimately reported to the Respondent as City Manager. Also, as City Manager, Respondent could terminate City employees. In Respondent's positions as acting City Manager and City Manager, he was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Employees and Officers. Remarks and Conduct Toward Female Employees At all times relevant hereto, Angelita Griffin was employed by the City of Opa-locka. Ms. Griffin first started working with the City of Opa-locka during a Federal Emergency Management Agency (FEMA) project in late 1992. Thereafter, in March 1993, Ms. Griffin was hired by the City, in a temporary position as an accounts clerk in the Water Department, which was under the City's Finance Section. Ms. Griffin was eventually placed in a permanent position with the City and continued to work as a clerk in the Water Department until June 1995. Ms. Griffin first met Respondent on Saturday, June 10, 1995, the day after he was appointed acting City Manager. Respondent was visiting the Finance Department with Winston Mottley, Director of the Finance Department. Ms. Griffin and several other employees were in the office working that day. Respondent briefly spoke to some of the employees, but he did not engage in extended conversations with any of them. On June 10, 1995, while at the Finance Department, Respondent asked Mr. Mottley if he could send someone to Respondent's office on Monday to answer the telephones. Mr. Mottley said that he had just the right person, someone who he had been "trying to get out of his office." Even though Mr. Mottley did not name or otherwise identify that person to Respondent, the employee to whom he was referring was Ms. Griffin. The following Monday, June 12, 1995, Mr. Mottley informed Ms. Griffin that she was being transferred to the Building Department and told her to report there the next day. After Ms. Griffin reported to the Building Department on June 13, 1995, she was directed to report to the City Manager's Office. Although Ms. Griffin reported to the City Manager's Office, she was unhappy about being transferred from the Water Department. Ms. Griffin wanted to remain in the Water Department because she enjoyed the work, believed that she knew the job, and was comfortable there. Almost immediately after being transferred from the Water Department, Ms. Griffin openly expressed her disatisfaction about the transfer and took steps which she believed would possibly result in her being reassigned to the Water Department. Within a day or so of Ms. Griffin's being transferred to the City Manager's Office, she told Respondent that she wanted to go back to the Water Department. However, he did not comply with her request. Also, as early as June 13 or 14, 1995, Ms. Griffin telephoned former City Manager Dennis Whitt and asked him if he could "talk to someone in City Hall and see if [she could] go back to the Water Department." Ms. Griffin called former City Manager Whitt because she believed that he was "still close to the mayor and the commissioners." When former City Manager Whitt did not call Ms. Griffin with a response regarding her request, Ms. Griffin telephoned Mr. Whitt. In that conversation, Mr. Whitt told Ms. Griffin that he had been unsuccessful in trying to help her get transferred back to the Water Department. Mr. Whitt conveyed to Ms. Griffin that he had spoken to someone in the Water Department who said that Ms. Griffin was incompetent and that there was "nothing they could do to help [her]." Based on her telephone conversation with Mr. Whitt, Ms. Griffin believed that Respondent had told City Commissioner Helen Miller that Ms. Griffin couldn't return to the Water Department because she was "incompetent, . . ., didn't know [her] work over there, [and]. . . couldn't even type." During the week of June 12, 1995, Ms. Griffin also went to the office of the City's Vice-Mayor Timothy Holmes and asked him to help her "get back to the Water Department." Vice- Mayor Holmes apparently believed that such a transfer was unlikely and advised Ms. Griffin that Respondent had said Ms. Griffin "didn't know [her] work over there." Despite Ms. Griffin's soliciting the assistance of Mr. Whitt and Vice-Mayor Holmes, whom she considered to be influential, and Respondent, she was never reassigned to the Water Department. Between June 1995 and November 1995, Ms. Griffin worked in four different offices: the City Manager's Office, the Mayor's Office, Safe Neighborhoods, and Code Enforcement. While working in each of the aforementioned offices, Ms. Griffin's sole or primary responsibility was to answer the telephone. Beginning on June 13, 1995, Ms. Griffin worked for Respondent in the City Manager's Office and was there for about two months. While working in the City Manager's Office, there were two instances when Respondent spoke to Ms. Griffin about reporting to work late. In the first instance, Ms. Griffin indicated that her tardiness was due to transporting her son to daycare. During this or a subsequent conversation, Respondent asked Ms. Griffin several personal questions. The questions concerned Ms. Griffin's marital status, the paternity of her child, and her financial status as it related to her ability to take care of herself and her child. It was then that Ms. Griffin told Respondent that she earned extra money by working part-time as a singer. Ms. Griffin agreed to and did eventually bring him a tape of her music. On another occasion, when Ms. Griffin was working in Respondent's office, he commented on her weight and the junk food she was eating. Respondent then suggested that Ms. Griffin contact a company to inquire about having a juice machine put in the building. Respondent's comments upset Ms. Griffin so much that she almost stayed home from work the next day. However, she later decided to report to work even though she was late. When Ms. Griffin arrived at the office, Respondent called Ms. Griffin into his office to discuss her tardiness. Respondent also called his assistant, Ms. Robinson, into the office while he talked to Ms. Griffin. Mr. Mottley, who was already in Respondent's office when Ms. Griffin arrived, remained there during the meeting. Ms. Griffin became frustrated and told Respondent and Mr. Mottley that she was tired of them "harassing" her. After Ms. Griffin made this comment, Respondent demanded that she write a letter of apology for her accusation against Respondent and Mr. Mottley. Ms. Griffin acknowledged that she, in fact, wrote the letter and gave it to Respondent. However, there is no indication of what Respondent did with the letter. After working full-time in the City Manager's Office for about two months, Ms. Griffin was transferred to the Mayor's Office for a short time. From the Mayor's Office, Ms. Griffin was sent to Safe Neighborhoods, where she worked for approximately three weeks. Ms. Griffin's assignment to Safe Neighborhoods was the result of a request by the director of that program for additional assistance. From Safe Neighborhoods, Ms. Griffin went to work in Code Enforcement, where she worked until November 6 or 7, 1995. In the City of Opa-locka, a Report of Personnel Action was to be completed whenever an employee was transferred from one section to another section. However, it was not unusual for City employees to be transferred without such forms being completed. In Ms. Griffin's case, there was never any paperwork reflecting any of her interdepartmental transfers or reassignments. During Ms. Griffin's tenure with the City, even when she was not assigned exclusively to the City Manager's Office, she was called to that office several days a week, for some part of the workday, to answer the telephone. Ms. Griffin had no set schedule for reporting to the City Manager's Office to answer the telephone, but was considered a relief person and, as such, went there whenever she was called upon to report. When Ms. Griffin was needed, she was always called by a support staff person from the City Manager's Office. Ms. Griffin also served as a relief person under the two former city managers who preceded Respondent. In addition to Ms. Griffin, employees from other City departments were required to serve as relief persons by answering the telephone in the City Manager's Office. Again, this practice was in place prior to Respondent's being appointed City Manager and continued during his tenure. Several City employees, mainly Department heads or other highly placed staff, had Rotary Club memberships paid for by the City. Although Ms. Griffin did not fall into this category of employees, Respondent also authorized a City paid membership for her. Ms. Griffin was one of the City employees who regularly attended Rotary functions and meetings. In addition to her job with the City, Ms. Griffin was a singer. Because Ms. Griffin was a performing artist, she often sang at Rotary Club activities. Notwithstanding the fact that Ms. Griffin customarily sang at Rotary Club or other functions, there was at least one occasion when Respondent asked Ms. Griffin to sing at an event and she refused to do so. After Ms. Griffin refused to sing at that particular event, Respondent asked her why she was not more cooperative given "all that he had done for her." In response to this inquiry, Ms. Griffin told Respondent that her refusal to sing was not anything "personal." However, Ms. Griffin maintained her position that she "couldn't do it." After this exchange, there is no indication that Ms. Griffin sang at this function or that she suffered any adverse consequences as a result of her decision. During the period between June 13, 1995, and November 6, 1995, none of Ms. Griffin's supervisors ever documented any complaint about her job performance or observed any changes in her behavior or attitude. In fact, those individuals who worked with Ms. Griffin and saw her on a regular basis found her to be pleasant and happy, and noticed no changes in her demeanor. However, while Ms. Griffin worked in Safe Neighborhoods, a fellow employee, Mildred Bradshaw, observed that Ms. Griffin sometimes appeared disgusted or disturbed when she returned from the City Manager's office. In response to Ms. Bradshaw's inquiry about what was wrong, Ms. Griffin expressed her dissatisfaction with Respondent and told Ms. Bradshaw that she was "tired of [Respondent] calling her back over to his office" and "switching me back and forth and the way he was treating me as far as coming on to me." Ms. Griffin testified that she gave Ms. Bradshaw no detailed explanation of what she meant by these comments. None the less, contrary to Ms. Griffin's statement, Ms. Bradshaw testified that Ms. Griffin told her that she and Respondent had had "sex" in Respondent's office. According to Ms. Bradshaw, Ms. Griffin made this statement to her in October 1995, when Ms. Griffin worked in Safe Neighborhoods. On October 1, 1995, while Ms. Griffin was working in Safe Neighborhoods, City Commission authorized a 5 percent cost of living salary increase for City Employees. As a result thereof, Ms. Griffin's annual salary went from $16,500 to $17,388. Respondent authorized an additional raise for Ms. Griffin, on October 9, 1995, which increased her salary to $18,000. For the three weeks Ms. Griffin was in Safe Neighborhoods, she was supervised by Ms. Lockhart. However, Ms. Lockhart was unaware of Ms. Griffin's salary or of the pay raise authorized by Respondent. During Respondent's tenure as City Manager for the City Of Opa-locka, City employees other than Ms. Griffin received salary increases in excess of the 5 percent cost-of- living increase approved by the City Commission. Some of those salary increases, approved by Respondent, were substantially higher than the one received by Ms. Griffin. Completion of a Report of Personnel Action (RPA) is required to effectuate a salary increase for City employees and the form contains a "remarks" section that may be used to indicate the reason for any pay adjustment. Nonetheless, it is not unusual for such a statement to be absent from the RPA. In Ms. Griffin's case, no reason for the October 9, 1995, salary increase was provided on the form. Ms. Griffin signed the RPA authorizing her salary increase. However, when she signed the form, the only pay raise shown was the 5 percent cost of living adjustment. Ms. Griffin testified that the first she knew of the raise was when the Respondent called her in and asked her how she liked her raise. According to Ms. Griffin, she was upset to know she was receiving special treatment, and was concerned about what Respondent might want in return. On October 25, 1995, Ms. Griffin submitted a letter of resignation to the City, with such resignation being effective November 6, 1995. At the time Ms. Griffin tendered her letter of resignation, she told City colleagues that she was leaving the City to accept a job as a singer. Ms. Griffin told some City employees that she would be going on tour with someone, although after leaving the City, Ms. Griffin performed as a singer on a cruise ship. On the evening of November 1, 1995, Respondent and a number of City officials who belonged to the Rotary Club, including Respondent's assistant, Michael Jones, and Police Chief Craig Collins, attended a Rotary Club function. Ms. Griffin also attended and sang at the event. While enroute to the Rotary Club function on November 1, 1995, Ms. Griffin damaged her car. Ms. Griffin testified that the car was damaged when she backed into the gate or lock at her apartment complex as she was leaving for the Rotary Club event. However, that evening Ms. Griffin told Respondent, Michael Jones, and Craig Collins, in separate conversations, that someone had hit her car. On November 1, 1995, after learning that Ms. Griffin's vehicle was disabled, Police Chief Craig Collins offered to drive her home. Even though Ms. Griffin knew Chief Collins not only as the City's Police Chief, but also as a relative of one of her friends, she declined his offer. Michael Jones also offered to provide Ms. Griffin with a police escort to take her home. Again, Ms. Griffin declined this offer and instead accepted a ride with Respondent. At Respondent's suggestion, Ms. Griffin then drove her car to the City Police Station and parked it. Respondent went to the Police Station to pick up Ms. Griffin and drive her home. Respondent drove Ms. Griffin home after the Rotary Club event. When Respondent arrived at Ms. Griffin's apartment complex, he entered through the security entrance and drove Ms. Griffin to her apartment. About fifteen minutes after Respondent left the Rotary function, Respondent called Mr. Jones from the cellular telephone in Respondent's car to advise him of matters that the Mayor had discussed earlier that evening. This call was made after Respondent took Ms. Griffin to her apartment. Ms. Griffin's and Respondent's versions of what occurred once they arrived at Ms. Griffin's apartment complex are at odds. Respondent's version of the events that transpired on the evening of November 1, 1995, is that after he arrived at Ms. Griffin's apartment complex, she exited his car and he immediately left. According to Respondent, he never went into Ms. Griffin's apartment. According to Ms. Griffin, Respondent carried Ms. Griffin's belongings upstairs, entered her apartment, put the items in her bedroom, seated himself on her couch, and asked for something to drink. Ms. Griffin testified that while she was getting Respondent something to drink, he came up behind her, and rubbed against her. Ms. Griffin stated that she then turned around and tried to push him away, but Respondent persisted in his efforts, asking her why she was resisting after all he had done for her. Finally, according to Ms. Griffin, Respondent pushed her down and asked her for oral sex, and when she did not comply, he engaged in sexual intercourse with her against her will. Ms. Griffin testified that she did not want Respondent in her apartment on the evening of November 1, 1995, but claims that she did know how to stand up to him. Ms. Griffin never reported the aforementioned alleged sexual assault to anyone before about August 1996, when she mentioned it to her attorney. Moreover, Ms. Griffin never reported the incident to law enforcement officials nor did she seek medical attention after the alleged assault. There is no physical or otherwise reliable evidence that the alleged sexual assault occurred. Furthermore, it is found that Ms. Griffin's testimony regarding the alleged assault is not credible. Thus, it is found that on the evening of November 1, 1995, Respondent never entered Ms. Griffin's apartment. The next day, November 2, 1995, Ms. Griffin reported to her City job as usual. During that day, Ms. Griffin went to the City Manager's office after she was called to report there. Ms. Griffin continued to work for the City until November 7, 1995. Although Ms. Griffin's resignation was to be effective November 6, 1995, she worked an extra day until November 7, 1995, at the request of Respondent. During the period between November 7, 1995, and August 19, 1996, Ms. Griffin was employed as a singer on the a cruise ship, Europa Sea Cruise. About nine months after Ms. Griffin left her job with the City, she filed a sexual harassment claim against Respondent. According to Ms. Griffin, the reason she decided to file the complaint was that she "had gone for a long time without saying anything to anybody." Also, Ms. Griffin acknowledged that she filed the complaint because she was struggling financially, was in a low-paying job, was away from her son, had given up her apartment, and was "stressed out and worried." The basis of the claim was alleged acts that occurred between June 1995 and November 1995. With the possible exception of comments that may have been made to Ms. Bradshaw in October 1995, Ms. Griffin never told anyone that Respondent made inappropriate remarks to her or behaved inappropriately toward her. Ms. Griffin testified that from the first month that she reported to Respondent's office and continuing until she left the City's employ four and one-half months later, she was subjected to continuous sexual harassment by the Respondent. According to Ms. Griffin, in addition to the questions about her personal life noted in paragraph 15 above, Respondent asked her whether there was a man in he life, told her he was looking for a girlfriend, and asked for her help. Ms. Griffin also testified that during the time she worked in Respondent's office, he stared at her breasts. Moreover, Ms. Griffin testified that Respondent hugged her almost everyday that she came into the office. According to Ms. Griffin, Respondent sometimes hugged her in the presence of other City employees who worked in the office. According to Ms. Griffin, Respondent not only hugged her, but also hugged other female City employees. From the reception area, anyone could see into Respondent's private office through a transparent window. This was possible because there was no covering on the window to obscure the view. Regla Mederes, who worked as Respondent's executive secretary at the time relevant to this proceeding, worked in an area where she was able to observe both Ms. Griffin and Respondent and would have seen Respondent hug Ms. Griffin if he had done so. However, Ms. Mederes never saw Respondent hug Ms. Griffin when she came into the office to answer the telephones or any other time. Aletha Robinson, Respondent's assistant when he worked for the City, was in and out of Respondent's office on a regular basis, but also never saw Respondent hug Ms. Griffin. Ms. Robinson stated that Respondent was always professional and "very much" a gentleman when he was in the office. Respondent never hugged Ms. Griffin or any other City employee in the workplace and was never overheard making sexually inappropriate remarks to female employees in the workplace. Ms. Griffin testified that at on two separate occasions, Respondent touched her on the buttocks. According to Ms. Griffin, Respondent touched her buttocks with his knee when he sat behind her at a banquet. Based on Ms. Griffin's account of events, Respondent also touched her buttocks with his hands while they stood in a buffet line at a Rotary function. Ms. Griffin stated that in the first situation, she made no attempt to move her chair and in neither of the aforementioned situations did she say anything to Respondent. Other City employees and officials attending these events never observed Respondent touching Ms. Griffin. In fact, at Rotary events, Respondent never sat near Ms. Griffin. As City Manager, Respondent was seated at the front of the room, typically at the head table. On the other hand, Ms. Griffin was usually late and sat in or near the back of the room. Moreover, Ms. Griffin testified that during the course of her employment, Respondent asked her out to dinner and on another occasion, called her at home and asked if her boyfriend was in bed with her. Ms. Griffin never reported this to anyone during her employment with the City. According to Ms. Griffin, on the evening of November 1, 1995, after the Rotary Club function had concluded, Respondent remarked that since Ms. Griffin had resigned from the City, she could now go out with him. Moreover, Ms. Griffin testified that these comments were made in the presence of City officials and/or employees, namely Vice Mayor Holmes, Aletha Robinson, and Michael Jones. Neither of the aforementioned individuals heard Respondent make any comment that Ms. Griffin could now be his girlfriend or go out with him. Respondent, on one occasion, commented to Mr. Mottley about Ms. Griffin's breasts and their size. During this conversation, which Mr. Mottley characterized as "talking as men," he jokingly warned the Respondent that "breasts" could get him into trouble. This was a private conversation between only Respondent and Mr. Mottley. It is unknown where or when this discussion took place. Respondent has had numerous courses dealing with sexual harassment. Thus, he was aware that remarks of a sexual nature to subordinates are inappropriate; that it was improper to ask a subordinate employee about her sexual partners; that it was improper to ask a subordinate employee to kiss him; and that it was improper for a superior to attempt to engage a subordinate employee in a sexual or romantic relationship. Ana Otero was employed by the City of Opa-locka for eight years, leaving in September 1997, after she was asked to resign by Arlington Sands. Ms. Otero testified that she did not like anyone associated with the City of Opa-locka, including Respondent. On one occasion when Ms. Otero went to Respondent's office, he told her that he wanted to come to her house for rice and beans. On another occasion, while passing through the small room where the copier was located, Respondent came up behind Ms. Otero while she was making photocopies. He was so close to her that she could feel his breath on her neck. Also, there was a time that Respondent made a comment to Ms. Otero regarding short Puerto Rican women. In another incident that occurred at the workplace, Respondent asked Ms. Otero to give him an "intimate" kiss. Ms. Otero never reported Respondent's conduct or comments during her tenure with the City. Liliana Cuevas was employed by the City of Opa-locka from 1990 until 1996. At one point, when Ms. Cuevas was in a meeting with Respondent on a personnel matter, he began to inquire about her personal life. Respondent asked such questions as why she was divorcing her husband, and whether her husband was her son's father. Respondent also asked her if she wanted to go out with one of his colleagues. On another occasion, Ms. Cuevas was delivering papers to the Respondent. As she gave him the items, he brushed his fingers lightly against her hand. As she was about to exit his office, he called her back to give her something else to take back with her. This scene was repeated several times, each time with Respondent brushing Ms. Cuevas' hand and watching her as she went back and forth. Respondent never asked Ms. Cuevas to have sex with him, asked her out, or made any "moves on her." Notwithstanding, Ms. Cuevas' description of the the incident described above, she stated that Respondent has never flirted with her or gotten physical with her. Ms. Cuevas never reported any inappropriate conduct by Respondent while she was employed by the City. While Ms. Cuevas filed sexual harassment charges against other employees of the City, she has not filed any such charges against Respondent. Sonia Hernandez started working for the City as an administrative assistant in the Public Works Department in November 1995. She left the City's employ in December 1996, after being terminated by Aibola Balogun. One week into her employment with the City, someone at a staff meeting asked Ms. Hernandez if she were single. Respondent told the staff member to "back off." When Ms. Hernandez came to this meeting, she unknowingly sat in the area designated for upper management, Respondent grabbed her arm and hand as if indicating she was in the wrong area. Ms. Hernandez characterized Respondent's action as physical rather than sexual. Nonetheless, when he put his hand on Ms. Hernandez, she felt uncomfortable. About a week after the staff meeting Respondent called Ms. Hernandez and invited her to the Christmas party. During this call, another person was on Respondent's speaker phone. Respondent made comments to this third person about Ms. Hernandez's "big brown eyes." On another occasion, during one of his regular visits to the City's public works section, Respondent observed Twinkies on Ms. Hernandez's desk and suggested that she "lay off the Twinkies." Ms. Hernandez believed that the comment was a negative reference to her weight, and responded by telling Respondent that she was "comfortable with herself." Respondent then looked at her, chuckled, and said, "Well, when I usually go to the meat market, I buy a pound of meat as opposed to a pound of bones." Ms. Hernandez did not understand the meaning of Respondent's statement, but the earlier reference to her weight made her feel uncomfortable. Although Respondent made comments about Ms. Hernandez's weight, she testified that Respondent made no sexual advances toward her either at the Christmas party or the workplace. Finally, at the City employees' Christmas party, Respondent approached Ms. Hernandez and her date, and told Ms. Hernandez that someone wanted to meet her. Ms. Hernandez indicated that she was not interested. During the conversation, Ms. Hernandez believed that Respondent was looking at her breasts, rather than at her face. This made Ms. Hernandez feel uncomfortable. At the end of the conversation Respondent shook Ms. Hernandez's hand. The entire conversation lasted about 30 seconds. While serving as City Manager, Respondent was aware that it was improper for a superior to engage in unsolicited or unwelcome sexually or romantically-oriented remarks or behavior toward a subordinate employee. Repair of Employee's Vehicle Using Public Resources As previously noted, on November 1, 1995, Ms. Griffin damaged her car on the way to a Rotary Club function at which she was to sing. After the event, Ms. Griffin approached Michael Jones and told him that someone had hit her car, that the bumper was on the ground, and that the car was inoperable. Nevertheless, later that evening, Ms. Griffin was able to drive the damaged vehicle to the City Police Station, where she left it overnight. The next day, Ms. Griffin went to see Michael Jones about having her car repaired. Mr. Jones instructed City employee, Jesus Corrales, to look at the car to assess the damage. Mr. Corrales told Mr. Jones that he could reattach the bumper in about five minutes. Thereafter, Mr. Jones directed Mr. Corrales to repair Ms. Griffin's car. Pursuant to Mr. Jones' directive, Mr. Corrales repaired Ms. Griffin's car. Even though no City-owned parts were required, it took Mr. Corrales two to three hours to repair the vehicle. After the vehicle was prepared, Ms. Griffin offered to pay Mr. Corrales $20.00 for repairing the damage to her car. Mr. Corrales refused to accept the money. Respondent never authorized or directed Mr. Corrales to repair Ms. Griffin's car. Nor did Respondent authorize or instruct Mr. Jones to have Mr. Corrales repair the vehicle. Behavior Toward Job Applicant One day during Respondent's tenure as City Manager, he went to the City's Revenue Department. While in that office, Respondent observed an individual who was not employed by the City in that office typing. The Respondent then asked Deborah Ford, Director of the Revenue Department, who the person was and why she was in the office working. Ms. Ford indicated that the individual, Tonia Sanders, was good and had previously worked with her. Respondent admonished Ms. Ford, reminded her that there were procedures for hiring people, and directed her to have Ms. Sanders leave the office. Respondent then told Ms. Ford to have Ms. Sanders pick up an employment application and he offered to interview her if Ms. Ford brought her by his office. A couple of days later Ms. Ford brought Ms. Sanders by Respondent's office. After both women entered the office, Ms. Ford commented to Respondent about Ms. Sanders' physical appearance, indicating that Ms. Sanders was attractive and had nice legs. Respondent cut this conversation off and then talked to Ms. Sanders about matters related to her application. Immediately after Ms. Sanders left, Respondent counseled Ms. Ford and told her not to ever bring anyone else to the office and "talk like that." Respondent put Ms. Sanders' City employment application on file and subsequently interviewed Ms. Sanders on one other occasion. However, Respondent never hired her for a position with the City. Ms. Sanders testified that Respondent later called Ms. Sanders and asked her out socially. On one occasion, he suggested she prepare dinner for him and offered to purchase the ingredients. On another occasion, Ms. Sanders spent some time talking with Respondent at a restaurant called Shula's, as part of a gathering organized by City employee Debra Ford. Following the gathering, Ms. Ford invited Respondent to go out with her and Ms. Sanders, but Respondent declined and all three decided to go home. However, as Respondent was leaving, he asked Ms. Sanders to ride with him. Ms. Sanders refused Respondent's offer. On another occasion, Respondent called Ms. Sanders and told her to make hotel reservations at a specified hotel. Respondent instructed Ms. Sanders to call him after she had made the arrangements and he would meet her at the hotel. Although Respondent never expressly spoke to her about sexually-related matters or made sexually-explicit suggestions, Ms. Sanders reasonably assumed that Respondent was attempting to set up a sexual liaison with her. Ms. Sanders was not interested and did not comply with Respondent's instructions. The aforementioned incidents involving Ms. Sanders occurred while Ms. Sanders' job application with the City was pending.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Earnie Neal, violated Section 112.313(6), Florida Statutes, in two of the three instances alleged; imposing a civil penalty of $3,000 per violation; and issuing a public censure and reprimand. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. _ CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 13th day of November, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David H. Nevel, Esquire Law Offices of Ronald S. Lowy Seventh Floor 420 Lincoln Road Miami Beach, Florida 33139 Cynthia Everett, Esquire City of Opa-locka City Hall 777 Sharazad Boulevard Opa-Locka, Florida 33054 Kerrie J. Stillman Complaint Coordinator and Clerk Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue Whether or not on or about December 5, 1975, the Respondent, Evelyn R. Doege, licensed under the beverage law, did allow or permit Angela Davies an employee to conduct herself in a lewd and lascivious manner to wit; performing in the nude and the placing of foreign objects on or into Angela Davies vagina, the touching or rubbing the vaginal area with Angela Davies fingers to simulate masturbation, in violation of Section 847.011(4), Florida Statutes, thereby violating Section 561.29, Florida Statutes. Whether or not on or about January 23, 1976, the Respondent, Evelyn Christine Doege, licensed under the beverage law, did knowingly allow or permit a person or persons, to wit; William Thomas Hogan, Robert Joseph Ruchanelli, Leroy Francis Bonifay, Hervert Ronnie Milstead and Joseph Stephen Tronie, to roll dice on the countertop of the bar in her licensed premises for money and/or beer, in violation of Section 849.01, Florida Statutes, and thereby violating Section 561.29, Florida Statutes.
Findings Of Fact The Respondent, Evelyn Christine Doege, is the holder of license no. 27-374, series 2-COP, held with the State of Florida, Division of Beverage. The Respondent held such license on December 5, 1975 and January 23, 1976, the operative dates of the complaints under consideration. On December 5, 1975 the Respondent was operating under the aforementioned license at 508 South Navy Boulevard, Escambia County, Florida. Among the employees of the Respondent were certain topless dancers. These dancers had been instructed by the Respondent to act decent and to keep their clothes on, with the exception of the tops of their clothing. These dancers mentioned were female. On that same date, to wit; December 5, 1975, between the hours of 3:00 P.M. and 3:30 P.M., one of the employees, employed on that day and time was Angela Davies. While dancing in the bar proper, Angela Davies removed the top and bottom of her clothing to include the T-string which she was wearing as a bottom part of her undergarment and left the stage area where she was performing. She then proceeded to a patron's table and thrust her vagina at the patron seated at that table. This course of conduct went on for a couple of songs over a period of five to ten minutes. Angela Davies then went back to the stage and continued to expose her vagina, she took eye glasses from one of the patrons and placed the ear piece into her vagina. She then squatted down and removed a dollar bill from the mouth of a patron with her vagina and then took the dollar bill out with her hand. Still in the presence of patrons she fondled her breasts with her fingers and inserted her fingers in her vagina simulating masturbation. At this point in time a female patron identified as Rhonda or Debbie, who had formally been a dancer in the bar, was challenged by the patrons in the bar to, "show Angela how to do it." At which time Rhonda or Debbie got up on the stage with Angela Davies, took off all her clothes and began dancing. In the course of the performance Angela and Debbie or Rhonda fondled each others breasts and vaginal area. Rhonda or Debbie then exited from the stage. Angela then took an advertising figure made out of cardboard which was in the form of a man, placed that figure between her legs and thrust her vagina at the figure. When Angela had concluded this she took a wine bottle and placed the wine bottle in the pubic area. The wine bottle was then broken on the stage. During the course of Angela Davies' performance the Respondent, Evelyn Doege had come to the back of the stage and thrown water at Angela Davies and attempted to make her stop. In addition, when the bottle was broken she made another attempt to have the employee, Angela Davies, cease her dance. She was unsuccessful in her attempts. Agent David Cobb had witnessed Angela Davies activities. He took the Respondent from the bar into the parking lot, and placed her under arrest. He then reentered the bar and placed Angela Davies under arrest. Angela Davies had been drinking and appeared not to be in control of her faculties. It was established that the employee, Angela Davies, was a roommate of Rhonda or Debbie, and the Respondent knew of this fact prior to the actions of those two persons. Moreover, the Respondent was able to see these actions from her location within the bar during the course of the dances. On January 23, 1976, while serving a notice to show cause for the events of December 5, 1975, certain patrons within the Respondent's bar at 508 South Navy Boulevard, Escambia County, Florida, were observed rolling dice on the countertop of the bar. The Respondent was standing at the bar while this activity was occurring. Those patrons stated that they were rolling the dice to see who would buy a round of beer. The Respondent admitted seeing this activity but stated that she felt it was not illegal. The dice and cup in which the dice had been placed were not the property of the Respondent.
Recommendation For the violations as established in the notice to show cause, it is recommended that the Respondent be suspended for a period of 90 days and fined in the amount of $500.00. DONE and ENTERED this 21st day of October, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Anthony E. Fiorentino, Esquire 105 South Navy Boulevard Pensacola, Florida 32507
Findings Of Fact The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards. During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male. Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled. Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones. On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder. Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30 a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed. Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate." Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door. At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode. After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances. J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual. The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts. Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint should be DISMISSED. DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Donald Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Pursuant to section 760.08, Florida Statutes (2015), the issue is whether, in the furnishing of public accommodations, Respondent is guilty of discrimination against Petitioner on the grounds of race, color, and national origin by prohibiting Petitioner from re-entering the business premises of Respondent due to Petitioner's sexual harassment of Respondent's employees.
Findings Of Fact Petitioner moved to the United States nine years ago from Maracaibo, Venezuela. Petitioner is Hispanic, speaks English with a Spanish accent, and is dark-complected. Pepito's Plaza is a small retail complex in Doral, Florida, comprising a gas station/convenience store and three small restaurants. Respondent owns and operates the gas station/convenience store. The business owners, employees, and customers of Pepito's Plaza are nearly entirely Hispanic. Like Petitioner, the business owners are also from Venezuela. For three years, Petitioner has delivered food for a restaurant located near Pepito's Plaza. Petitioner has sometimes purchased items for delivery from the convenience store or the three restaurants. Petitioner's initial contact with employees of the convenience store and restaurants was unremarkable. He impressed a clerk of the convenience store, Ms. Maria Gabriela Villarroel, as a kind and educated gentleman. During one visit to the convenience store, Petitioner noticed that Ms. Villarroel had displayed on the counter a set of her business cards, which announced an Herbalife® business that she operated on the side. Petitioner took a card and, using the personal phone number of Ms. Villarroel shown on the card, later purchased Herbalife® products from her. In February or March 2015, Petitioner used Ms. Villarroel's phone number to text and call her repeatedly to ask her out on a date and make advances. Ms. Villarroel never consented to go on a date with Petitioner, did nothing to encourage this behavior, and stated that she did not welcome his advances, culminating with a complaint in April 2015 that she felt stalked and harassed by Petitioner's obsessive behaviors. Nevertheless, Petitioner persisted in these behaviors. Not only did Petitioner persist in these behaviors with Ms. Villarroel, but, early in the summer of 2015, Petitioner began harassing Amalia Almedia, a female employee of Pepito's Arepas Bar, which was one of the restaurants in the complex. Visiting the restaurant several times daily, Petitioner rarely purchased anything, but instead talked to Amalia Almedia and other female employees. Soon, Petitioner was blowing kisses at Ms. Villarroel and Ms. Almedia, winking at them, and making sexual facial expressions at them. Petitioner loitered by the window of the restaurant, occasionally leaning in to stare at Ms. Almedia's body. Unable to deal with the problem themselves, Ms. Villarroel and Ms. Almedia complained to the manager of Pepito's Plaza, Luis Martinez, who did not immediately talk to Petitioner. However, in late June or early July, Petitioner visited Arepas Bar and offered a plastic shopping bag to Ms. Almedia, who declined the offer. Petitioner then left the bag on the counter and left. Ms. Almedia summoned Mr. Martinez, who inspected the bag and found that it contained two pair of new women's' colored panties. Mr. Martinez noticed that a police officer happened to be at the plaza, so he asked the officer to join Mr. Martinez in approaching Petitioner and ordering him not to return to Pepito's Plaza due to his harassment of female employees. Accompanied by the officer, Mr. Martinez found Petitioner on the plaza premises and told him that he had been harassing the female staff for some time, and he was no longer welcome anywhere at Pepito's Plaza. Petitioner attempts to provide context in two respects: first, he claims that he was the subject of dismissive comments from the female employees of Pepito's Plaza. Because Petitioner does not acknowledge that his coarse, repeated behaviors toward these employees constituted harassment, he is, of course, unable to frame the issue as dismissive comments from the female staff whom he was sexually harassing. There is no evidence that female staff initiated any disrespectful behavior toward him prior to the harassment, nor is there any evidence that the dismissive comments were indicative of anything more than an honest attempt by these beleaguered women to get Petitioner to stop harassing them as they attempted to perform their employment duties within fairly constrained areas that left them continuously vulnerable to Petitioner's stalking of them. Petitioner's second point is that he was entitled to a warning before being barred from Pepito's Plaza. To require a warning from a manager is to discredit the attempts by the female staff themselves to stop the harassment. Petitioner was fully aware that his sexual banter and advances produced feelings of annoyance, repulsion, and even safety concerns. On these facts, the absence of a prior warning from Mr. Martinez no more supports an inference of discrimination than does his order that Petitioner no longer enter the premises of Pepito's Plaza.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 28, 2016. DONE AND ENTERED this 27th day of October, 2016, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 27th day of October, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Carlos E. Burgos Pepito's Plaza 10701 Northwest 58th Street Doral, Florida 33178 (eServed) Benjamin Korn, Esquire The Law Offices of Benjamin Korn, PLLC 444 Brickell Avenue, Suite 51-332 Miami, Florida 33131 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent Employer is guilty of an unlawful employment practice pursuant to Section 760.10, Florida Statutes, by discriminating against Petitioner based upon her sex (gender). Specifically, whether Petitioner was sexually harassed in the work place and/or unlawfully terminated for refusing sexual favors.
Findings Of Fact Respondent is a corporation engaged in the utility construction business. Respondent employs approximately 150 people for a variety of tasks. At all times material, Respondent's president, Bill Beers (male), had at least a partial ownership interest in the company. He currently "owns" the company. Petitioner is female. Petitioner was initially employed with Respondent as an accounting assistant on July 22, 1998. Petitioner had earned a high school diploma and an accounting certificate from Lake Technical Center. She has completed approximately one year of junior college. Jerry Schinderle (male), Respondent's Vice-President of Finance and its Comptroller, made the decision to hire Petitioner. He was in charge of Respondent's accounting department in which Petitioner was employed. Bill Beers did not participate in, or have input for, the decision to hire Petitioner. Mr. Schinderle promoted Petitioner to an accounts payable position on or about August 21, 1998, when another female employee was either terminated or quit. With her promotion, Petitioner received a raise in pay. In her new position, Petitioner's duties were to handle accounts payable, job costing reports, and job tracking. From Petitioner's date of hire until approximately October 1999, Mr. Schinderle was Petitioner's sole immediate supervisor. At all times during this period there were a total of four employees in the accounting department, including Petitioner, Mr. Schinderle, and two female employees. From approximately October 1998 to October-November 1999, Petitioner and Bill Beers engaged in a consensual and intimately sexual romantic relationship. While they were dating in 1998 and 1999, Petitioner gave Mr. Beers a kiss in the morning in his office on the ground floor of the employer's building, before she reported to work in her second floor office. However, it is undisputed that Petitioner and Mr. Beers never had sexual relations at the office. During the period from October 1998 to October-November 1999, their sexual activities occurred only after the work day was over or during their mutual lunch hours in Petitioner's home, in Mr. Beers' home, or in a car. In 1999, Deborah Goodnight (female) was hired from outside the company as Mr. Schinderle's Assistant Comptroller. As such, Ms. Goodnight became Petitioner's immediate superior, and Mr. Schinderle remained in a supervisory capacity over the entire accounting department, which continued to be made up of four employees, counting himself, Ms. Goodnight, Petitioner, and one other female employee. Petitioner complained herein that Mr. Beers promised her the promotion and that she should have been promoted instead of Respondent's hiring Ms. Goodnight from outside the company. Mr. Beers testified that he had refused Petitioner's request to intervene on her behalf with Mr. Schinderle about the promotion. Mr. Schinderle confirmed that Ms. Goodnight was hired solely by himself. Ms. Goodnight had a four-year bachelor's degree in accounting and had been comptroller of another company previously. Ms. Goodnight's qualifications for the position for which she was hired clearly exceeded those of Petitioner. Thereafter, until Petitioner was laid off by Respondent on June 1, 2001, there continued to never be more than a total of four employees in the accounting department: Mr. Schinderle, Deborah Goodnight, Petitioner, and one other female employee. Most of Respondent's employees became aware that Petitioner and Mr. Beers were dating when Mr. Beers escorted Petitioner to a company Christmas party (year unspecified). Petitioner personally told Ms. Goodnight that they were dating. However, no employee who testified was aware of any unprofessional or inappropriate conduct by Mr. Beers with Petitioner in the office at any time while she was employed by Respondent. Sadly, Petitioner's and Mr. Beers' relationship was rocky, and in October or November 1999, Mr. Beers initiated a break-up of their consensual sexual relationship. Petitioner initially claimed that she initiated the break-up but ultimately admitted that she and Mr. Beers mutually agreed to terminate their consensual sexual relationship at that time. Petitioner and Mr. Beers have different views of who pursued whom between November 1999 and February 2000, but both agree that in February 2000, they resumed a sexual relationship outside the office. By each protagonist's account, during a large part of the period from February 2000 to late summer or the autumn of 2000 (see Findings of Fact 16-17), there were periods of good relations and periods of bad relations between the two of them. There were break-ups, one-night stands, and reconciliations at various times. It was, at best or worst, an "on-again-off- again" romance, but there still was no unprofessional or improper conduct observed by anyone at the office. Any sexual liaisons occurred outside the office as previously described. It is undisputed that in July 2000, Mr. Beers left a note on Petitioner's vehicle in which he expressed his desire to terminate their relationship once and for all. Mr. Beers and Petitioner disagree as to whether or not they had sexual relations after July 2000. Petitioner claimed that Mr. Beers importuned her at every possible opportunity, in or out of the office, to have sex with him and had sex with her as late as January 2001. Mr. Beers denied any pursuit of Petitioner and denied any sexual contact with Petitioner after July 2000. Both Petitioner and Mr. Beers have some confusion of dates between what happened at their November 1999 break-up versus their July 2000 breakup, and it is possible to interpret part of Mr. Beers' testimony to the effect that there was a sexual encounter between them as late as November 2000, but upon the greater weight of the credible evidence as a whole, it is found that their sexual relationship ended once and for all in July 2000.. In August 2000, Mr. Beers began dating another woman. In February 2001, he became engaged to her, and she moved into his home. They were married in July 2001. Petitioner claimed to have been harassed by co-workers at Mr. Beers' instigation from the beginning of her employment in 1998 to its end on June 1, 2001. She further alleged that from February 2000 until her termination on June 1, 2001, she strongly felt that she had to comply with Mr. Beers' requests for sexual favors or she would receive some "punishment" in the workplace or lose her job. Likewise, she believed that any advantage she gained in the employment field also was a "gift" from Mr. Beers either to woo her for future sexual favors or to reward her for immediately past sexual favors. Some of Petitioner's allegations in this regard are less than credible simply because she claimed that she was "punished" even while she was engaging in admittedly consensual sex with Mr. Beers from October 1998 to November 1999. Other of her specific allegations of receiving quid pro quo advantages and punishments from Mr. Beers after February 2000, were either not credible on their face or were affirmatively refuted as set out infra. Testimony from other employees and record evidence indicated that Respondent's employment practices were uniform towards all employees, including Petitioner. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers, she received the benefit of being assigned a company cell phone, but that when she refused to perform sexual favors for Mr. Beers that benefit was taken away. The better evidence shows that soon after they started dating in 1998, Mr. Beers loaned Petitioner a company cell phone, assigned to himself, which he let her use for approximately one week, because she had confided to him that the man that she was living with was abusive and she was afraid of him. Also, when Petitioner or anyone else handled the payroll, that person had the use of a company cell phone. Petitioner was unable to show that at any time during her employment from 1998 to 2001, there was any permanent, or even lengthy, assignment of a company cell phone to her, or that such an assignment was taken away from her. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers she received the benefit of being assigned a company car for personal use. Petitioner was able to establish only that, occasionally, during their first consensual relationship in 1998-1999, Mr. Beers loaned her the use of his company-issued car and also provided her with his company-issued credit card with which to pay for gassing-up that car for both of them to use. While this may constitute a misuse of the employer's car and card by Mr. Beers, the greater weight of the credible evidence is still contrary to Petitioner's unsupported testimony that a company vehicle was assigned to her and then removed from her custody due to her refusal of sexual favors to Mr. Beers. The testimony of several witnesses on this point was corroborated by a list of vehicles and the names of employees to whom those vehicles had been assigned. Petitioner's name does not appear on this list. The list further supports a finding that the majority of vehicles owned by Respondent employer were trucks and other types of heavy equipment which were assigned to male employees working in the field, as opposed to ordinary vehicles assigned to any office staff, either male or female. Like all Respondent's other employees, Petitioner had access to a company pool vehicle which any employee was allowed to use for company business or for personal use when his or her own vehicle was being repaired or was otherwise out of commission. This vehicle was never individually assigned to any employee. Petitioner claimed that during and after her sexual relationships with Mr. Beers, and continually until her 2001 termination, he directed other employees to purposefully harass her, withhold information or invoice sheets, or create other road blocks to her successfully performing her job duties or completing her assignments at work. Petitioner's testimony is particularly incredible on this point because she specifically contended that several of the instances when other employees harassed her or made her job more difficult took place during the time she admittedly was engaging in a consensual relationship with Mr. Beers in 1998-1999. Also, no other evidence or testimony corroborated Petitioner's analysis in this regard for any time period. No employees were affirmatively shown to have intentionally tried to prevent Petitioner from being able to perform her job duties at any time, including 2000-2001. Moreover, at no time did Petitioner report any harassment by co-workers to Ms. Goodnight or Mr. Schinderle. Petitioner was only occasionally reprimanded for not doing her job well, and she continued to be employed and to receive regular raises throughout her 1998-2001 employment Petitioner contended that Mr. Beers described in lurid detail their sexual activities to other male employees, who then accosted her with suggestive comments. There was no corroboration for this allegation. Although it is probable that rough-and-tumble male employees speculated about the relationship between their boss and Petitioner and it is further probable that they occasionally goaded Petitioner with their speculations, there is no corroboration, whatsoever, that Mr. Beers discussed Petitioner with co-workers or encouraged any bad behavior toward Petitioner by them. The comments, if they occurred, certainly were not shown to be pervasive behavior in the workplace. Petitioner also incredibly claimed that, in general, other employees were instructed not to talk to her both during and after the end of her sexual relationship with Mr. Beers. Other employees testified that they were not aware of any instructions at any time by Mr. Beers or anyone else that they should refuse to speak with Petitioner. Even Petitioner conceded that Ms. Goodnight was reasonably cordial to her at all times. Petitioner specifically claimed that one particular employee, Glen Busby, was instructed by Mr. Beers not to speak to her and was "punished" for speaking with her by having a company vehicle taken away entirely or replaced with an older, poorer quality car. She conjectured that Mr. Busby was also terminated by Respondent as a result of befriending her. Contrariwise, Mr. Busby testified credibly that he was never instructed by Mr. Beers or his supervisors not to speak to Petitioner. Mr. Busby stated that he had left Respondent's employment for approximately a year in order to care for his mother, who was dying. He also related that when he returned to work for Respondent, he was not assigned a vehicle such as he had previously been assigned, because he came back as a project manager, working primarily in the office, as opposed to returning as a construction site employee who needed a heavy duty vehicle on a jobsite. He acknowledged that while he had been in the field, several company vehicles had been assigned to him and that these were frequently replaced with newer, better- conditioned vehicles. Petitioner was unable to show that any professional training element of her employment was dependent on whether she did, or did not, provide sexual favors. The greater weight of the credible testimony, plus records and calendars, demonstrated that Petitioner received the same internal accounting training as other accounting department employees, mostly from Mr. Schinderle on a rotating basis. Mr. Schinderle testified, and Petitioner acknowledged, that she also was provided with specialized accounting programming training by an outside computer company representative. Petitioner described one instance, apparently in late 1998, possibly while the consensual relationship with Mr. Beers was still "on," when she took off from work for approximately two weeks. She passed the first week as a Mayo Clinic outpatient for kidney problems and passed the second week in her home or in hospital emergency rooms, due to postoperative problems. She claimed that during these two weeks, she was unable to have sexual relations with Mr. Beers and refused to have sex with him when he personally delivered her paycheck to her home after the first week. She claimed that he had promised her that she would get her check for the second week, too, but when she refused him, he refused to pay her for the second week that she was unable to work. Actually, Respondent's records show that Respondent had paid Petitioner regular wages for ten days, but she was required to reimburse the employer for the tenth day she was off work that was not covered by saved sick leave or another leave policy. Although Petitioner showed some abuses of company policy regarding breaks and smoking committed by individual employees, the greater weight of the credible evidence is that such company policies were equally applied and enforced among all employees, including Petitioner. Petitioner characterized a bonus she got in February 2000, the first month of the February 2000-July 2000 reconciliation, as a quid-pro-quo reward from Mr. Beers because she had agreed to resume her relationship with him. However, in fact, it was company policy to distribute annual bonuses to everyone in the company in February of each year. The amount paid out by the company depended on the amount authorized by auditors based on the prior year's business profit. Petitioner received an annual bonus each February she worked for Respondent, but the amount varied, according to the company's profit, for Petitioner and for all other employees. In February 2000, all employees received their annual bonuses. Petitioner and two other members of Respondent's office staff, who were not having an affair with the company president, received identical amounts of $2,500.00 annual bonus based on their function within the company. It is undisputed that on January 19, 2001, after their final break-up, Petitioner approached Mr. Beers in his office and indicated that she was having difficulty accepting the end of their relationship. She had apparently anticipated that they would eventually marry, and was struggling with the fact that Mr. Beers was romantically involved with the woman he had begun dating in August 2000. Petitioner asked Mr. Beers to pay her money so that she could go away and find other employment. Petitioner contends that this was a request for Mr. Beers to pay her the bonus that Respondent annually paid its employees each February. Mr. Beers interpreted Petitioner's January 19, 2001, request for money as a demand that he pay her to quit her job and get out of his life. He refused to accept her offered letter of resignation. Petitioner claims that on January 26, 2001, Respondent advertised as vacant her position as "account payable specialist" in the newspaper, but no date appears on the supporting exhibit; Petitioner was not terminated; and no replacement for Petitioner was hired. At all times material, Respondent had a sexual harassment policy in place which required a victim of sexual harassment to report such harassment to his/her supervisor or the company president. Petitioner received a copy of the policy when she was hired in 1998. Petitioner admittedly did not complain to her immediate superior, Ms. Goodnight, at any time. Although Petitioner claimed she reported harassment by Mr. Beers, the company president, to Mr. Schinderle in late 1998, just prior to her first break-up with Mr. Beers, Mr. Schinderle recalls no such report. Although Mr. Schinderle testified that if Petitioner had reported any alleged sexual harassment by the company president he would have brought the complaint to the attention of the company's then-majority stock-holder, Mr. Schinderle is less than credible on that single point. However, Petitioner's "resignation letter" of January 19, 2001, may be considered notification to Mr. Beers and Respondent employer of most of the allegations raised in this case. Sometime in February of 2001, Petitioner received her annual bonus, like any other employee. It was based on the earnings of the company in the year 2000. Every employee on the second floor of Respondent's office got the same amount. On February 23, 2001, Petitioner received a raise from $13.00 to $13.50 per hour for taking on the additional responsibility of adding a new phone system. The appropriate paperwork was filled out for this raise, and witnessed by Mr. Schinderle and Mr. Beers. Given the foregoing, plus Petitioner's admission that she voluntarily took on the additional phone duties in order to get the raise, Petitioner's characterization of the raise as her reward for giving Mr. Beers sexual favors is not credible. Sometime in March 2001, Petitioner showed up at Mr. Beers' home intoxicated. Mr. Beers' fiancée and his son were residing in the home. Petitioner asked to come in, and Mr. Beers asked her to go away and not make a scene because he did not want to have to call the police. One Sunday a few weeks later, Petitioner approached Mr. Beers' fiancée and his mother in WalMart. Petitioner's characterization of this conversation varies, but it is clear that what she said was intended to shock the fiancée and damage Mr. Beers' relationship with fiancée. Petitioner left a message on Mr. Beers' telephone before his mother and fiancée could return home from WalMart. Her message was to the effect, "I just caused you a bunch of problems." Petitioner came to Mr. Beers' office at Respondent's place of business on the following Monday morning and gloated. Mr. Beers angrily ordered her out of his office, but he did not terminate her. Petitioner testified that she believed that Mr. Beers ordered all of Respondent's employees to be tested for drugs on March 19, 2001, in an effort to "catch" her because she had confided to him back on November 25, 2000, that she had smoked "pot" (marijuana) in order to relieve her distress over their deteriorating relationship. At first, Petitioner claimed that she was too frightened to show up for the test. Later, she claimed to have been "escorted" to the drug testing center by two other employees. The greater weight of the credible evidence is that company policy was to do drug testing of every employee when that employee was hired and then drug test selected employees at random intervals, but that the policy had been only loosely followed. Of the employees who testified on the subject, only Mr. Schinderle recalled being drug-tested upon his date of hire in 1993. Ms. Goodnight and others had never been tested. It appears that Bill Padgett, Respondent's head of security, had previously done random drug testing in a very random manner, so all employees who had not previously been tested for drugs, including Ms. Goodnight, Petitioner, and the other female employee in the accounting department, were tested on March 19, 2001. Petitioner rode, as a matter of convenience, in the same car to the drug-testing site with the other two females employed in the accounting department. Petitioner was not singled out at that time. In fact, all employees, even Mr. Padgett and Mr. Beers, were tested. Petitioner passed the drug test and was not laid off in March 2001. Petitioner kept a log of personal notes and summarized them into a diary. This item, which may have been edited and copied over several times, reflects that Petitioner connected every life event, however small, to Mr. Beers. According to Petitioner's notes from March 20, 2001, Petitioner was "an emotional wreck," and she thought that Mr. Beers wanted to "get rid of" her and was "finished with me now." In her accounting post, she had seen a $5,000.00 check Mr. Beers had written on "Monday" and speculated whether or not it was for an engagement ring. Mr. Beers and his fiancée had become formally engaged in February 2001. (See Finding of Fact 17.) Although Petitioner testified that on March 21, 2001, Mr. Beers arranged for her to get additional company medical and/or dental benefits so as to make good a promise to her in return for her sexual favors, several of Respondent's employees testified more credibly that Petitioner was given the same health and other benefits as all other employees in her "Hourly B" class, throughout her employment with Respondent. Moreover, the greater weight of the credible evidence is that all of Respondent's employees were offered an opportunity to sign-up for additional health benefits and that Petitioner had the same opportunity for this benefit as every other employee did, and that she had, in fact, received the benefits for which she signed-up. At the beginning of the second quarter of the year 2001, in approximately April or May, Respondent made the decision that each department would have to cut staff and overhead expenses due to deteriorating business conditions and the cancellation of a lot of expected work. Mr. Beers gave each department head, including Mr. Schinderle, the sole discretion to make the decision as to who would be laid-off, based upon the position the department head believed would be most easily and efficiently eliminated. Mr. Schinderle was department head for the accounting department. He made the decision to lay-off Petitioner effective 6/1/2001. Mr. Schinderle did not receive any input or guidelines from Mr. Beers except to lay-off the one employee he could best do without. Mr. Beers had no discussions with Mr. Schinderle regarding the decision to lay-off Petitioner. Mr. Schinderle testified that he felt Petitioner's position could be the most easily eliminated because the Assistant Comptroller, Deborah Goodnight, was able to perform the functions of her own position and the functions of Petitioner's position. In fact, Ms. Goodnight was capable of doing the work of either Petitioner or the other female employee, but she was not consulted by Mr. Schinderle. On or about June 1, 2001, Petitioner and three other employees were laid-off from their positions with Respondent. Each of the other employees was from a different department and the decision to lay-off each of them had been made by different department heads than Mr. Schinderle. Mr. Schinderle listed Petitioner as eligible for re- hire. Petitioner never called back to Respondent in any attempt to be re-hired after her lay-off. After Petitioner was laid-off, there remained only three (not four) employees in Respondent's accounting department. The accounting department was able to effectively and efficiently function with the reduced three-person staff and did not acquire additional staff for approximately four years, until May 2005.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of March, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John Vernon Head, Esquire John Vernon Head, P.A. 138 East Central Avenue Howey-in-the-Hills, Florida 34737 Stephen W. Johnson, Esquire Stephanie G. McCullough, Esquire 1000 W. Main Street Leesburg, Florida 34748
