The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 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 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent's teaching certificate should be revoked pursuant to Chapter 231, Florida Statutes, as set forth in petition, dated November 8, 1979.
Findings Of Fact Respondent Robert Marshall Stabler holds Florida Teaching Certificate No. 306751, Graduate, Rank III, valid through June 30, 1981, covering the area of elementary education. He was so licensed on May 9, 1979. (Stipulation.) Respondent was employed in the public schools of Brevard County at Pineda Elementary School, Cocoa, Florida, as a teacher from 1971 to May 1979. Respondent was also employed by Brevard Community College to instruct inmates at the Brevard Correctional Institution at Sharpes, Florida, for several years prior to May 9, 1979. (Testimony of Fisher, Brock, Curtis.) In late April 1979 a correctional officer at the Brevard Correctional Institution received information from a confidential informant, who was an inmate, that Respondent would bring marijuana into the institution on May 9, 1979. On that date, at approximately 6:15 p.m., Respondent entered the correctional facility and was advised by a correctional officer that college instructors were going to be searched that evening. Respondent was asked to submit to such a search and he consented to the same. Respondent was thereupon directed to the nearby "shakedown" room where his briefcase was opened and three packages wrapped in white paper were discovered. At this time, Respondent stated "That's just for my own use." A white envelope containing thirteen five dollar bills was also found in the briefcase. A narcotics officer of the Brevard County Sheriff's Department thereupon weighed and made a standard field test of the material contained in the packages and determined that it was cannabis in excess of 100 grams. The officer then placed Respondent under arrest for introducing contraband upon the grounds of a correctional institution. The packages were thereafter submitted to the Sanford Crime Laboratory for analysis and it was determined that they contained a total of 106.6 grams of cannabis and that two of these packages contained more than five grams of cannabis leaf material. (Testimony of Fisher, Pierce, Steger, Thomas, Boling, Petitioner's Exhibits 1-4.) The regulations of the Brevard Correctional Institution authorize a search of visitors which is normally conducted on a random basis. If consent to search is not given, the non-consenting individual is not permitted to enter the institution. (Testimony of Thomas.) Respondent received outstanding teacher performance evaluations at Pineda Elementary School during prior years and is considered by his principal to be an above-average teacher. Another faculty member at the school characterized him as an "excellent" teacher. He excelled in dealing with students with disciplinary problems and had excellent relations with both students and faculty personnel. He was also considered by his supervisor and a fellow instructor to be the most outstanding teacher at the Brevard Correctional Institution who was highly successful in motivating his students. (Testimony of Curtis, Brock, Walker, Weimer, Respondent's Composite Exhibit 1.)
Recommendation That Respondent's teaching certificate be revoked for a period of four years. DONE AND ENTERED this 12th day of May 1980 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1980. COPIES FURNISHED: Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 R. V. Richards, Esquire 1526 South Washington Avenue Titusville, Florida 32780
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, to wit: termination of Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent has been the elected Sheriff of Alachua County, Florida, for 12 years. As such, he was, and is, a constitutional officer of the State of Florida and the chief law enforcement officer for Alachua County. Since January 1998, he has administered the Alachua County Jail. In his capacity as administrator of the jail he qualifies, strictly in his official capacity, as an "employer," pursuant to Chapter 760, Florida Statutes. Respondent Employer also may be referred to as "the Alachua County Sheriff's Office" (ACSO). Petitioner is an African-American female. At all times material, she was an employee of Respondent Employer, and "an aggrieved person," pursuant to Chapter 760, Florida Statutes. Respondent began administration of the jail in January 1998. Prior to that time, the Alachua County Board of County Commissioners operated the jail. Respondent assumed administration of the jail through a governmental interlocal agreement, subject to existing collective bargaining agreements and various other parameters encouraging continued employment of existing jail personnel. In January 1998, all current jail employees were required to complete new applications, subject to review to ensure compliance with the ACSO's employment standards. On her 1998 job application form, Petitioner answered questions concerning her physical limitations as follows: * * * Are you able to participate with or without accommodation in defensive tactics, firearms, or physical training, operation of a motor vehicle, or otherwise perform the duties set forth in the job description or task analysis related to the position for which you applied? - NO. This position may require a physical ability test. If such a test or examination is required, would you be able to take this test or examination with or without accommodation? - NO. Explain what accommodation(s) you would need to perform these tasks or take the test or examination. - LEFT BLANK. * * * The majority of former Alachua County Jail employees were hired by ACSO. Some employees who did not meet ACSO's requirements were not hired/transferred to the new employer. These were mostly employees with criminal records. It was Respondent's intent to try to retain jail employees, even if they were temporarily unable to perform their essential job functions, for up to 12 months. Petitioner, who had served as a detention officer at the jail from 1981 to 1998, was one of the employees who successfully made the transition and was hired by Respondent in January 1998. At all times material, Petitioner was a Certified Correctional Officer. Her certification only indicates that she had met minimum training requirements and the mandatory continuing professional training requirements, pursuant to Florida law. At the time of her hire/transfer in January 1998, Petitioner weighed 350 pounds and suffered from osteoarthritis and hypertension. Obesity, osteoarthritis, and hypertension have plagued Petitioner since before her hire/transfer. Also, at least since June 29, 1998, Petitioner has been unable to walk long distances. On that date, a podiatrist diagnosed her with "bone spurs" in both feet. She submitted a Health and Work Status Report to the Employer stating Petitioner should only sit 50 percent, stand 50 percent, walk 50 percent, and climb stairs 10 percent. These figures add up to more than 100 percent, and the undersigned interprets the report, in the light of Petitioner's testimony, to mean that the physician was restricting her to no more than the respective percentages of each listed activity. The June 29, 1998, report went on to say that Petitioner should not use her feet for extended periods, perform physical force restraints/combat, or stressful work. As a result, ACSO placed Petitioner on temporary restricted duty (TRD). Petitioner's testimony suggested that, at some point, she recovered from the foregoing "temporary" restrictions, and a subsequent November 26, 2002, memorandum from the Employer (see Finding of Fact 45) suggests that sometime prior to March 6, 2002, Petitioner was returned to regular duty, minus the June 29, 1998, physical restrictions. (See Findings of Fact 35-37). However, it is not clear for what period of time between June 29, 1998, and March 6, 2002, Petitioner remained on TRD. There was no requirement of a Physical Agility Test (PAT) during Petitioner's 18 years of service at the jail prior to ACSO taking over jail management, and Petitioner was not required to take and pass a PAT in order to be hired/transferred to the ACSO regime in 1998. The jail employed more than 300 detention officers. Detention officers were subject to being assigned to any area within the jail. The written Job Description for Detention Officer has, at all times material, required ". . . maintaining physical custody and control of inmates . . ." and ". . . receiving and processing inmates, enforcing disciplinary procedures for the control of inmate behavior." Nowhere does Petitioner's written job description use the word, "running," but it specifies the following "physical requirements," with or without, a PAT in place: E. PHYSICAL REQUIREMENTS Sit, stand or walk for moderate periods. Have good close, distant, color, peripheral, depth and adjusted vision. Hear at normal range or with accommodation. Speak, read, write, and understand English fluently. Lift/carry 100+ pounds. Climb, balance and reach with arms. Bend, stoop, kneel, crouch and crawl. Taste and smell. Manual dexterity. Drive a vehicle. (Emphasis supplied) The primary duties for all jail detention officers were the care, custody, and control of jail inmates and operation of the facility. These duties might, on occasion, include running or walking briskly to come to the aid of fellow officers who were "down" or to respond to inmate fights. Detention officers were also responsible for the security of the entire 300,000 square feet of jail space and the 10-acre parcel of land surrounding it. A jail detention officer's regular duties also included inspecting inmate housing areas and looking under bunks, some of which were only 16 inches off the floor, for contraband, including drugs and weapons. Detention officers had to go up and down stairs to make these inspections. During Petitioner's employment with Respondent, detention officers on TRD were often placed in the personnel office, lobby of the jail, or in central control. The lobby now only utilizes civilian personnel. (See Finding of Fact 50.) The Sheriff has a law enforcement background and mindset. When he took over the jail, he imposed additional employment standards on jail detention officers above and beyond the minimum standards established by the State of Florida. As part of his initiative to professionalize the jail, and in an effort to obtain national accreditation for the jail from the American Correctional Association, the Sheriff established minimum physical requirements for all detention officers. Over time, ACSO's training staff created a job-related physical review and designed the PAT. The PAT evolved over a period from approximately November 1999 to March 2000. It ultimately consisted of a timed course of nine tasks. The timed PAT began with Task 1: a 455-foot (reduced by July 1, 2003, to 300-foot) sprint, to the first obstacle. The "first obstacle" was the step obstacle (stepping over 17 seven-inch rope steps in sequence), then continuing on 50 feet to the next task. It is clear from her testimony that Petitioner incorrectly saw this first part (Tasks 1 and 2) as the only part of the PAT which required running. However, Task 3 of the PAT was the "Serpentine," which involved snaking around a series of cones without knocking them down. Then, the detention officer would have to "sprint approximately 85-feet to the next obstacle." Task 4 was a low crawl, followed by a sprint of approximately 155 feet to the weapon fire area and the next obstacle. Task 5 was rapid and accurate weapon fire testing, followed by a sprint approximately 40-feet to the next obstacle. Task 6 for detention officers involved climbing a set of stairs, followed by a sprint of approximately 60 feet to the next obstacle. Task 7 was another serpentine, followed by a sprint of approximately 160 feet to the next obstacle. Task 8 was a test involving dragging a 150- pound dummy and a 123-foot sprint to Task 9, which involved handcuffing. It is clear that by "sprint" the PAT intended quick, short runs at high speeds and that the PAT required many sprints. It is not clear whether the PAT intended that a stopwatch be running non-stop through the nine tasks, but it is clear that all or part of the PAT was timed and that a specific overall time had to be met by each detention officer in order to pass the PAT. Petitioner knew when she was hired/transferred in January 1998 that Respondent Employer had, or soon would have, additional and different employment standards than she had experienced for the last 18 years at the jail and that those new standards might constitute a mandatory threshold for her continued employment. As of November 2000, all detention officers, including Petitioner, were advised that they would be required to participate in the PAT and that they were being given an 18- month phase-in period before the test became a mandatory job requirement for detention officers. Petitioner was advised that she would be required to take/pass the PAT by July 1, 2003. Among other purposes, the PAT was designed to mirror some of Petitioner's daily job activities or job description requirements, such as going up and down stairs, running, and searching under bunks. Parts of the PAT addressed the readiness necessity of confronting and controlling inmates. It also included the less-likely emergency activities of crawling and shooting. At least by July 1, 2003, (and possibly earlier), Petitioner's job description was amended to reflect that the PAT was part of the essential functions of her job: IV. QUALIFICATIONS: * * * B. Experience and Training: * * * Must meet or exceed all applicable physical agility standards required by ACSO. As part of the continued departmental upgrading and phasing-in of PAT, detention officers, including Petitioner, also were required to participate in 40 hours of in-service training, which included training to successfully pass the PAT. ACSO provided University of Florida fitness and nutrition interns and an onsite exercise room to assist jail employees in reaching physical fitness levels sufficient to timely pass the PAT. Petitioner did not avail herself of these PAT training opportunities, due, in part, to health reasons. On March 6, 2002, Petitioner provided to Respondent a letter from her general practitioner, Dr. Thompson, stating: [Petitioner] suffers from morbid obesity and has severe osteoarthritis of both knees and also suffers from hypertension. These ongoing medical problems preclude her from being able to participate in the physical agility test that is a requirement of her position as a correctional officer. . . . Petitioner could not physically train for, or perform, the PAT as of March 6, 2002. From that date on, she relied on Dr. Thompson's letter, so that her superiors would not require her to take/train for the PAT. Petitioner submitted no later reports to change Dr. Thompson's March 6, 2002, opinion, but claimed that the Employer had not placed her on TRD as a result of it. In April of 2002, Petitioner's knee was injured in a motor vehicle accident. Petitioner testified that from the April 2002 accident until she was terminated in August 2003, she was unable to stand for long periods of time; run; cook regular meals for her family; clean her house without assistance; or do any gardening or yard work. She also related that knee pain limited or ended marital intimacy. To some degree, at least, these limitations continued after her August 2003 termination. She also claimed to have been unable to attempt the PAT from April 2002 until her termination in August 2003. See infra. Petitioner testified that she could not workout at the jail gym or otherwise prepare for the PAT after her April 2002 automobile accident. Over time, in part due to her inactivity, Petitioner reached a weight in excess of 400 pounds. Petitioner continued to rely on Dr. Thompson's March 6, 2002, pre-accident letter to avoid training for, or taking, the PAT. Dr. Thompson never supplemented this letter. Respondent's published policy concerning the PAT permitted employees who were unable to do PAT for medical reasons to delay taking it, as follows: Sworn employees unable to participate in a semi-annual proficiency because of a medical condition must have their physician complete the Medical/Physician's Recommendation Form, ACSO 94-24 and the Health and Work Status Report, ACSO 96-178 and return them to the Human Resources Bureau. Sworn employees who fail to participate or demonstrate semi-annual proficiency because of a medical condition will be placed on Temporary Restricted Duty (TRD) for a period of up to twelve (12) months to rectify the deficiency. The TRD shall not exceed twelve (12) consecutive months, or a total of eighteen (18) months within a twenty-four month period. At the end of the extension period, the sworn employee will be required to complete and successfully pass any missed test(s). Sworn employees who fail to demonstrate proficiency at the end of the TRD period will be relieved . . . of sworn duty if not done so when the employee is placed on TRD. . . . [sworn employees] suspended from sworn duty shall be reassigned to non-sworn status pending administrative action. Administrative action may range from permanent non-sworn assignment with all employee pay and benefits adjusted accordingly, if a position is available, up to and including termination. (Bracketed material added for clarity.) On or about November 25, 2002, Petitioner submitted a Health and Work Status Report from Dr. Bensen, her chiropractor, which said she was: Unable to run and is to be excused from that portion of the physical agility test until further notice. On November 26, 2002, Respondent Sheriff issued a memo to Petitioner that provided, in pertinent part: RE: TEMPORARY RESTRICTED DUTY the very nature of corrections requires instantaneous response to potentially hazardous or stressful situations. This response often involves extreme physical exertion. You have provided medical information from your physician indicating that you are temporarily unable to fulfill the essential functions of your appointment as a Detention Officer. Therefore, effective immediately, you are hereby placed on Temporary Restricted Duty and directed to report to the Human Resources Bureau for assignment. You must provide the Human Resources Bureau with an updated Health and Work Status Report every 30 days, commencing with the effective date of this assignment. While on Temporary Restricted Duty, the following conditions shall apply: 1. You shall avoid physical confrontations, except when necessary to protect yourself or another person from imminent death or serious injury. * * * 5. You will not participate in any training that would involve activities contrary to the restriction indicated by your physician. * * * An assignment to Temporary Restricted Duty cannot exceed twelve months. If you are unable to return to full, unrestricted duties as a Detention Officer at that time, you will be subject to reclassification to a position within your capabilities or to termination. Petitioner concedes that Instruction 5, of the Sheriff's November 26, 2002, memo, placing her on TRD, amounted to Respondent telling her that he was following her doctor's orders and expected her to follow them, too. From November 2002, through July 2003, Petitioner submitted appropriate Health and Work Status Reports from Dr. Bensen and received approval of TRD from the Employer. The way the foregoing system worked was that at some point between the 19th and 30th of each month, Petitioner would visit Dr. Bensen and he would make out a Health and Work Status Report, certifying that she was "unable to run and is excused from that portion of the Physical Ability Test until further notice." (R-12) A few days later, Petitioner would present the foregoing Report to a superior officer, who would note on a Return to Duty Form, the date of his or her conference with Petitioner concerning Petitioner's restrictions; the date Petitioner's next Health and Work Status Report was due; and the date of Petitioner's next scheduled physician's appointment. This Return to Duty Form authorized Petitioner to be placed in TRD. (R-11) Thereafter, a Human Resources Risk Manager signed- off on the same form to approve the TRD assignment. Although the Health and Work Status Report Forms and Return to Duty Forms in evidence do not cover every month between November 26, 2002, and August 2003, or precisely dove- tail by date, the tangible items in evidence, together with the credible testimony and evidence as a whole, support findings that Petitioner's last counseling by a superior officer occurred on August 1, 2003; that her next physician's appointment was expected to be August 26, 2003; and that Petitioner was ordered to remain on TRD, effective July 30, 2003. (See Findings of Fact 56-58) While on TRD from November 2002 to August 2003, Petitioner was primarily assigned to the jail's lobby. Occasionally she was assigned to the command center. Petitioner was assigned to the lobby, partly due to her good communication skills. At the time, both locations were full duty detention officer postings. Neither location has stairs in it. Trustee inmates are not handcuffed in the lobby. Transferee-inmates may be handcuffed in the lobby. The lobby is mostly a public information outlet and an entrance and exit point for the jail facility. Currently, ACSO utilizes only civilian personnel in those areas, instead of physically restricted detention officers, because all sworn detention officers are expected to be in a state of operational readiness and to be able to respond as full-service officers. On June 10, 2003, the Employer requested an independent medical evaluation of Petitioner. Dr. Newcomer, a medical physician, evaluated Petitioner and provided the Employer with the following information on June 24, 2003: DIAGNOSIS: Morbid obesity, bilateral knee arthritis with more recent knee trauma resulting in chronic pain, hypertension in fair control. TREATMENT PLAN: Functional capacity evaluation is requested and will be set up at Rehab Solutions. When that information is available, further assessment of her specific functional abilities to compare the physical requirements of job description including physical agility test, can be more specifically addressed. Her extreme obesity and advanced degenerative arthritis in the knee will definitely limit her long term ability for weight bearing exercise and physical stress. (Emphasis supplied) On June 27, 2003, Rehab Solutions, Inc., wrote Petitioner in an attempt to schedule, for July 7, 2003, the physician-ordered functional capacity evaluation. On July 1, 2003, the PAT became mandatory for all detention officers, including Petitioner. Petitioner took Rehab Solutions a July 1, 2003, letter (Tr-142; R-10) from Dr. Bensen. As a result, Rehab Solutions elected not to perform the functional capacity evaluation of Petitioner on July 7, 2003. Dr. Bensen's letter read, in pertinent part: [Petitioner] has been seen in this office for treatment of injuries sustained in an MVA [sic. "motor vehicle accident"] which occurred on April 12, 2002. These injuries include cervicobrachial syndrome, cervical sprain-strain, knee sprain-strain, and thoracic sprain-strain . . . she has recently been able to increase both the speed as well as the distance of her walking regimen. Soft tissue injuries typically take up to 18 months to heal and [Petitioner's] rehabilitation has been complicated by her weight. any stressful assessment examination at this time is likely to re-injure that patient's knee and it is recommended that such assessment be postponed until October of this year to allow for more complete resolution of her symptoms. Since the foregoing letter from Dr. Bensen was presented to Rehab Solutions, Inc., it would seem to be suggesting, not that Petitioner could attempt the PAT in October 2003, but that Rehab Solutions, Inc., ought not to perform a functional capacity evaluation of Petitioner for Dr. Newcomer and the Employer until October 2003. It is not clear when the Employer came into possession of this letter of Dr. Bensen. On July 29, 2003, Dr. Bensen filled out a Health and Work Status Report to the effect that he had examined Petitioner on July 29, 2003; that she might return to work on July 30, 2003; and that she was "unable to run and is to be excused from that portion of the physical agility test until dated [sic.] listed below - October 2003"; and that he expected Petitioner to return for her next appointment on August 26, 2003. (R-12) This was the last Health and Work Status Report submitted to the Employer before Petitioner's termination on August 7, 2003. (See Finding of Fact 49.) The last Return to Duty Form before Petitioner's termination shows that Susan Wiley, on behalf of the Employer, discussed Petitioner's restrictions with her on August 1, 2003; continued Petitioner on temporary restricted duty, effective July 30, 2003; and expected Petitioner to supply a new Health and Work Status Report on September 1, 2003, from a next scheduled physician's appointment date of August 1, 2003. (R-1) (See Finding of Fact 49.) From Findings of Fact 56 and 57, it is further found that despite some discrepancy in dates between Dr. Bensen's reports and the Employer's Return to Duty Forms, Petitioner's supervisors knew on August 1, 2003, that Petitioner might be able to attempt the PAT in October 2003. However, Respondent Employer terminated Petitioner on August 7, 2003, by a memorandum of that date, stating: In July of 2000, the Alachua County Sheriff's Office established a Physical Agility Test for Detention Officers at the Department of the Jail. The test was developed to test a Detention Officer's ability to meet essential minimum physical requirements of the job. The test, notification of requirements, and trial period were implemented over a 3 year time period. This test is specifically designed to assess one's ability to perform essential functions of your position which are physical in nature. Your medical information on file with the Human Resources Bureau indicates that you are unable to perform this test either now or in the foreseeable future. Detention Officers must be able to carry out their duties in a manner which safeguards the safety and welfare of the inmate population as well as employees. I have allowed you to function in a restricted capacity with the hope that you would make some progress in your rehabilitation, however, I note that no improvement in your medical condition has been documented. Keeping in mind the safety needs of this agency as well as the requirements of the position, I must accordingly end your assignment as a Detention Officer with the Department of the Jail of the Alachua County Sheriff's Office effective as of 1700 August 7, 2003. I encourage you to contact Human Resources Bureau Chief Sherry Larson at 367-4039 to discuss your interest in other vacant positions for which you may qualify. Please note your circumstances qualify you to take advantage of ACSO's Transition Period which allows you to use up to sixty (60) days of accumulated leave (sick, annual, compensatory, special event) to transition into retirement or other non-ACSO employment. In order to take advantage of this option you must contact Human Resources at 367-4040 immediately upon receipt of this memorandum. (Emphasis supplied.) Petitioner was employed for 3.8 years between her hire/transition to ACSO in January 1998 and her termination in August 2003. Petitioner contended that she never asked for an accommodation of her disability, but clearly, she accepted TRD for as often and as long as it was provided, at least from November 26, 2002 to August 7, 2003. During her entire 22 years of service as a detention officer, Petitioner was never disciplined or evaluated as unsatisfactory for any reason. After August 7, 2003, Petitioner contacted Ms. Larson concerning continued employment with ACSO and was informed that there were two ACSO positions available. Petitioner understood these positions to be "deputy" and "detention assistant." Petitioner understood the "deputy" position to be one for "road deputy," a position which requires passing an even more rigorous PAT than the one Petitioner would have to have passed as a jail detention officer. (See Findings of Fact 24- 27.) Although the detention assistant position was not commensurate with the salary level and duties of a detention officer, Petitioner admitted to being qualified and capable of performing that job description in August 2003. Petitioner told Ms. Larson that Petitioner would get back with her, but because Petitioner did not contact Ms. Larson within two days, Ms. Larson assumed Petitioner would not be applying for either current ACSO job opening or for any future ACSO openings, so she did not continue to contact Petitioner thereafter. Petitioner claims that approximately August 20, 2003, Dr. Thompson provided medical documentation indicating that she could attempt the PAT. However, Petitioner concedes that she never provided this information to Respondent. Dr. Thompson's alleged August 20, 2003, permission slip also was not offered in evidence. (TR-201-202.) Petitioner's testimony is conflicted as to her physical limitations from July 2003 to the date of hearing. She testified that prior to her termination by Respondent, her medical condition did not prohibit her performing any of the "essential functions" of her job as a detention officer, except running. At one point, she testified that after October 2003, (the earliest date of possible PAT performance as predicted by Dr. Bensen), she was able again to perform all her household chores. She also testified that after her termination in August 2003, her medical condition, which at least until October 2003, included no prolonged walking or standing and no running, prevented her from seeking a range of jobs outside her field, such as day care provider, cashier, mail deliverer, cook, grocery bagger, waitress, and nurse's aide. Petitioner testified that she continued to be unable to do her housework, yard work and general life activities at least until the beginning of 2004. Petitioner also testified that she believed she could fulfill her detention officer job description as of the date of hearing. She testified that she could attempt the PAT (without running) as of the date of hearing, but she was not sure she could pass it. She asserted that the PAT is not a bona fide requirement of the job of detention officer. Petitioner testified that from some time post- termination to May 2004, she suffered from depression and anxiety due to loss of her job, but she provided no medical corroboration of this part of her testimony. Nonetheless, at some point, she has been able to apply for a counselor position at Alachua County Work Release; a job at the Alachua County Library; and a job at the Court Services Office. For reasons unknown, she was not hired at any of them. She was not hired by the Bradford County Sheriff's Department in 2003 because it had no vacant positions at that time. She has intentionally not applied for any correctional officer jobs. She has a college degree in business administration, but apparently has not sought employment in that field. Petitioner has lost no health benefits as a result of her termination by Respondent Employer, because she has always had health insurance through her husband's employment. She did lose salary, retirement benefits, dental plan coverage, and supplemental life insurance coverage as a result of her termination. Petitioner has agreed to pay her attorney a reasonable fee in this case.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 7th day of June, 2005, 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 7th day of June, 2005. 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 Bill Salmon, Esquire 410 Southeast 4th Avenue, Suite A Gainesville, Florida 32601 Linda G. Bond, Esquire Allen, Norton, and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent, Department of Corrections (“DOC” or the “Department”), engaged in discriminatory practices against Petitioner, Patrick Quercioli, on the basis of his disability; and, if so, what relief should be granted.
Findings Of Fact Petitioner is a 53-year-old Caucasian male. From approximately November 19, 2004, until August 4, 2016, Petitioner was employed by the Department as a Correctional Officer. He was promoted to the rank of Correctional Officer Sergeant on July 28, 2006. At all times relevant hereto, Petitioner was working at the Annex section of the Lowell Correctional Institution (“Lowell”) located in Marion County. Lowell is a maximum security prison for female inmates; it has an average daily count of approximately 2,800 prisoners. The Department is an agency of the State of Florida, created pursuant to section 20.315, Florida Statutes, and is responsible for, inter alia, hiring and monitoring all employees engaged in operations at a state prison. Petitioner was separated from his employment with DOC due to the fact that he could not “perform the essential functions of his job.” That determination was based on a report from Petitioner’s therapist, Mrs. Robinson, and her opinion that Petitioner could not effectively perform his duties in the presence of inmates. Inasmuch as all Correctional Officer Sergeant positions require contact with inmates, DOC terminated Petitioner’s employment. The facts leading to the ultimate termination of Petitioner’s employment are anything other than ordinary. A discussion of those facts follows. In October 2014, a female inmate at Lowell was found dead in her cell. Petitioner was named as a suspect in the death, despite the fact that at the time of death he was on vacation with his family, i.e., he was not working at the prison. Local and national news outlets began reporting about the death, and Petitioner was named numerous times as a suspect and possible participant. Apparently, Petitioner’s name had been provided to the inmate’s family prior to her death as someone who had been harassing her. Nonetheless, Petitioner’s character and reputation were impugned by the news stories. Petitioner was placed on administrative leave pending further review by the Department. Meanwhile, the Florida Department of Law Enforcement (“FDLE”) commenced its own extensive investigation into the death of the inmate. The investigation focused quite heavily on Petitioner and one other correctional officer, but FDLE ultimately concluded that there was no evidence to prove either of the men had taken part in the inmate’s death. The inmate’s death, in fact, was ruled to be from natural causes.1/ The FDLE investigation was concluded on January 21, 2015. The Department did not issue a particular statement concerning Petitioner’s vindication, nor did it publish a notice about the FDLE findings. Petitioner takes great umbrage at this perceived failure by DOC, but cited to no requirement that the Department do so. The Department acknowledges that it did not make any effort to make public the findings of the FDLE investigation. During the FDLE investigation and while Petitioner’s alleged involvement in the incident was being broadcast by the news services, Petitioner began receiving threats against his life and the lives of his family members. Who made such threats or why such threats may have been made was not made clear at final hearing. Whether it was family and friends of the inmate, concerned citizens who perceived Petitioner as some kind of monster, or someone else making the threats, Petitioner was concerned for his safety. He was especially worried for his daughter, who had been living part-time with Petitioner on a split schedule with his ex-wife. When the news stories began to appear, the ex-wife refused to allow the daughter to visit with Petitioner. While he wanted to see his child, Petitioner knew that it was better for her to stay away from him until the situation improved. As a result of the publicity, the threats, and the stress on him and his family, Petitioner developed PTSD. The Department approved Petitioner for participation in EAP on March 6, 2015. EAP paid for counseling sessions with Petitioner’s chosen therapist, Mrs. Robinson. Petitioner had about 12 sessions with Mrs. Robinson while he was covered by EAP. After his EAP coverage expired, Petitioner met with Mrs. Robinson for two more sessions paid for as part of his FMLA leave. Mrs. Robinson identified Petitioner’s condition at the beginning of their sessions as quite extreme. He suffered from nightmares, crippling fear, paranoia, and unwillingness to leave his home. He had dark circles under his eyes and was obviously distraught. Mrs. Robinson began to work with Petitioner to help him view his fears and concerns differently. She taught him to utilize mindfulness meditation techniques. He was shown how to perform activities of daily life without being reminded of the trauma he had experienced. The number of sessions he spent with Mrs. Robinson was not sufficient for her to fully address his needs, however. She was able to diagnose his PTSD and began treatment for that condition, but their relationship ended before she could do much for him. By the time her treatment of Petitioner was concluded, they were working toward Petitioner’s acceptance of some inmates in his workplace, as long as they were not “general population inmates.” Ms. Robinson reiterated that Petitioner should not work within the prison compound, i.e., within the perimeter, at this time. She believed that with further assistance, Petitioner may one day be able to do so. By letter dated March 13, 2015, Mrs. Robinson notified the Department that, concerning Petitioner, “It is recommended that he does not return to work until further notice due to the hostility he has faced from the public, his co-workers and other inmates that he would be responsible for which could trigger further de-compensation and contribute to greater emotional disturbance. Mr. Quercioli is open to learning positive coping skills for improved feelings management as well as the treatments necessary for recovering from PTSD.” For about three months, the Department attempted to determine whether Petitioner would be able to return to work as a Correctional Officer Sergeant. On June 9, 2015, DOC notified Petitioner that his FMLA leave had been exhausted and he needed to talk to his supervisor, Major Patterson, about when he could come back to work. Mr. Patterson contacted Petitioner and basically said he would need to come back to work at the Lowell Annex, i.e., return to his old job. Meanwhile, the Department, by letter dated June 16, 2015, asked Mrs. Robinson for her opinion regarding whether Petitioner could work as a Correctional Officer Sergeant. The parties to this matter characterize the tone of that letter quite differently. It is therefore quoted here in its entirety for the purpose of objectivity: Dear Mrs. Robinson: The above employee [Petitioner] is a Correctional Office Sergeant with the Florida Department of Corrections at Lowell Correctional Institution. Your opinion regarding Mr. Quercioli’s medical status while working in a potentially dangerous environment will assist management in their decision to retain Mr. Quercioli in his current position. In order for us to determine whether or not Mr. Quercioli can safely perform his duties as a Correctional Officer Sergeant, we request that you complete this questionnaire as to his ability to perform the duties and responsibilities of a Correctional Officer Sergeant to full capacity. Please bear in mind that Correctional Officer Sergeants must be able to work split, rotating or fixed shifts, weekends, holidays and overtime possibly without notice as required. Overtime may include double shifts and working on off duty days. In order to assist you in making this determination, I am enclosing a position description and a list of essential functions for the Correctional Officer Sergeant position held by Mr. Quercioli. Also, please bear in mind that Mr. Quercioli’s job does require that he be able to possess a firearm. Furthermore, he could at any time be placed in a situation where the use of physical force, including deadly force may be necessary, to control violent inmates or prevent imminent threat to life. We ask that you provide information regarding how Mr. Quercioli can treat and control his condition in a correctional environment. In addition, we need to know what precautionary measures are required to ensure his physical condition is not exacerbated when he is involved in a highly dangerous situation with inmates or volatile situations with supervisors and/or co-workers. In rendering your opinion, if you determine Mr. Quercioli can perform some duties but not others, please specify which duties cannot be performed and the reason why. Additionally, if there is anything that can be done to allow him to perform these duties, please provide this information. In the letter making this request, the Department included a job description and a brief questionnaire to be filled out by the therapist. The questionnaire asked, “After reviewing the position description of Correctional Officer Sergeant, can Mr. Quercioli perform the duties of a Correctional Officer Sergeant with no restrictions?” The questionnaire went on to ask for any reasons that the question was answered in the negative. Mrs. Robinson replied that “No,” Petitioner could not perform the duties without restrictions. She went on to say that, “With 100% supervision of inmates as his primary duties and his constellation of PTSD symptoms, Mr. Quercioli would be at risk of decompensation. A job with no inmate contact may be possible in the future.” Mrs. Robinson had previously, in response to a Medical Certification request from FCHR, listed a few alternative jobs that Petitioner may be able to do, including: “administration away from inmates; staff security away from general population inmates; key keeper or arsenal maintenance away from general population inmates.” The evidence is unclear as to whether the Department was aware of her suggestions regarding those potential jobs for Petitioner. At final hearing, Ms. Robison reiterated her concern about Petitioner being asked to work in an area where general population inmates might be present. Her testimony, in part, was as follows: Q: “[W]ould he have been able to perform the required functions of his employment position based on what you read in his personnel description, the essential functions of his position, had the department considered or approved any request for accommodations Mr. Quercioli made on the department? A: The current job description, position description for a sergeant as a correctional officer, he couldn’t do that job. Q: Could he do others? A: He could do other jobs and we were working towards limited, you know, his acceptance and, you know, with the cognitive behavioral therapy helps you think different about things and he was opening up to the idea that yes, there will be inmates around but they’re at a lower level of risk, and so he was open to that and for trying to work in a different position. * * * Q: So, earlier or a few moments ago when you said he couldn’t perform under [sic] the position of a correctional sergeant, that’s not a hundred percent accurate, correct? A: Right, that was the job description, that is what he was doing in general population, supervising inmates. He can’t supervise inmates and that has a hundred percent by it, supervision of male or female inmates. That what he -- the part of his job that he couldn’t do. Q: Uh-huh, but with an accommodation, he could do that? A: Yes. In another job, other than supervising his primary one hundred percent duties of supervising male or female inmates. Tr., pp. 48-50. Exactly what duties Petitioner could perform without difficulty is unclear. It is certain he could not supervise inmates 100 percent of the time. Whether he could work around inmates in an environment separated from the prison compound is not certain. Whether he could respond to an emergency situation inside the compound is extremely doubtful.2/ Petitioner’s attorney submitted a letter to DOC dated June 26, 2015. The letter requested accommodations that might make it possible for Petitioner to perform one or more jobs at Lowell. The letter suggested part-time or modified work schedules, job restructuring, and other possibilities. The letter also stated, in part, “Instead of requiring Sergeant Quercioli to once again re-live the nightmares arising from his previous duty in the Lowell Annex, the Department could instead assign him to a less stressful desk job.” DOC responded that a less stressful desk job is not a feasible accommodation because a person in that position would not be able to perform the essential duties of a Correctional Officer Sergeant. The attorney responded to the Department that his previous request for an accommodation was not meant to be limited to a “desk job” only; he meant to include any reasonable accommodations. Though the two conversants used different terminology, it is obvious they were both addressing alternative jobs that did not require Petitioner to work within the prison compound, whether that meant literally sitting at a desk or not. Petitioner intimated, but did not conclusively prove, that there were certain jobs in the administration offices, i.e., outside the compound, that he might be capable of filling. No evidence was presented concerning the exact nature of those jobs, the responsibilities attached thereto, or Petitioner’s qualifications to fill them. Following the exchange of letters between DOC and Petitioner (through his attorney), the Department notified Petitioner via letter dated July 9, 2015, that a “personnel action” was being contemplated by DOC which could result in his dismissal from employment. The basis for a personnel action was that Petitioner’s therapist said he was “currently unable to perform the duties of . . . a Correctional Officer Sergeant.” Petitioner was given the opportunity to attend a pre- determination conference with DOC personnel to provide oral or written statements in regards to the personnel action. A conference was held on July 23, 2015. The Department was represented by Warden Gordon and Colonel Edith Pride. A teamster representative, Michael Riley, accompanied Petitioner to the conference. Petitioner’s attorney, Mr. Bisbee, attended the conference via telephone. Petitioner did not bring his therapist, Ms. Robinson, to the meeting because “it never crossed my mind” that she should attend. At the conference, Petitioner reiterated his desire to return to work, but stated he would rather not interact with inmates, even though he believed he might be able do so. His belief was inconsistent with his therapist’s determination and contrary to his attorney’s representations. It is unclear whether DOC could have assigned Petitioner to a position that did not involve some contact with inmates. There were a few jobs mentioned that take place in the prison’s administration building, outside the perimeter. Some of the “trustee” type inmates working within the administration building may have been much less threatening to Petitioner than general population inmates. But because every Correctional Officer Sergeant is deemed to be on call to attend to disturbances within the prison compound, regardless of their job or workplace, Petitioner could be subject to having close contact with the general population inmates. Petitioner identified one specific job in administration that he thought he might be able to handle despite some inmate contact. That job, in the area of training, was filled by another Correctional Officer Sergeant. Petitioner did not ever formally apply for the job. Subsequent to the predetermination conference, the Department issued a letter to Petitioner advising him that “You will be dismissed from your position as a Correctional Officer Sergeant effective August 4, 2015.” The letter gave Petitioner the right to grieve the action or to appeal it to the Public Employees Relations Commission. Petitioner did not avail himself of either of those options. Instead, he filed a claim with FCHR, resulting ultimately in the present action. DOC based its decision to terminate Petitioner’s employment on the fact that his own therapist had opined that he could not perform the essential functions of a Correctional Officer Sergeant. That is because persons in that position–-no matter what duties they were performing--must be able at a moment’s notice to react personally to any emergency situation that may arise within the inmate population. A correctional officer working in the motor pool, for example, may have to drop what he is doing, pick up a firearm, and rush into the compound to quell a disturbance. A sergeant who is performing training for other officers may have to cease her training and immediately report to duty inside the compound to respond to inmate unrest. There is no job under the Correctional Officer Sergeant umbrella that is immune from contact with inmates at any given time. There was, in short, no reasonable accommodation the Department could offer Petitioner. Two pertinent quotes from the record explain concisely the basis of the Department’s position in this case: As a general rule, we don’t “accommodate” correctional officers because the accommodations requested generally include exemption from the essential functions. We provide alternate duty for those officers who are temporarily unable to perform the duties of their position because of a work related injury. However, while on alternate duty, they do not wear a uniform, nor do they perform the duties of a [Correctional Officer]. * * * Quercioli’s therapist, Beth Robinson, stated he was not able to perform the duties of his position, although a job with no inmate contact may be possible in the future. There are no correctional officer positions, regardless of rank, whose essential functions do not include dealing with inmates. Exhibit 4 to Petitioner Exhibit 1, email from Patricia Linn, human resources analyst. It is not unusual for employees to request so-called “accommodations” from DOC relating to their duties as correctional officers. Such requests may include exceptions to the dress code, a need for ergonomic chairs, leave extensions, parking space changes, alternate work schedules, and the like. Each request is reviewed on its own merits and some are granted, some are denied. In fact, Petitioner alluded to the fact that after the inmate death incident, he had been reassigned to alternate duties not having to do with inmate monitoring. His duties were related to assisting applicants for jobs at Lowell to fill out their applications. Petitioner intimated that he did not enjoy that position. Petitioner asserts that DOC made no effort to contact him to discuss possible accommodations. He did not cite to any existing policy or rule which would require the Department to do so, however. Further, Petitioner admitted that he did not attempt to initiate such conversations with the Department, either. Since losing his job at Lowell, Petitioner has been unable to obtain gainful employment. Of the scores of internet applications for employment (and one in-person interview), not a single position came to fruition. As a result, Petitioner cashed out his state retirement plan, using the money to pay bills and provide for his daughter’s needs. Petitioner presented no evidence in this case that persons with disabilities were treated any differently by the Department when they requested accommodations.
Recommendation RECOMMENDED that a final order be issued by the Florida Commission on Human Relations, determining that the Department of Corrections had legitimate cause for the dismissal of employment of Petitioner, Patrick Quercioli, and that there is no evidence of discrimination. DONE AND ENTERED this 16th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2017.
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, the following findings of fact are made: Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI). Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI. Inspector White and Ziggy were summoned to the parking lot. Ziggy alerted to the presence of narcotics in Respondent's vehicle. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it). In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters and other written materials, including correspondence from inmates. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her." Instead of waiting in the lobby, Respondent got into her vehicle and drove off. Her employment was subsequently terminated, and she never returned to the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2008.
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times here relevant Shirley R. Bennett was employed by DHRS as a Detention Care Worker I. In August 1982 Bennett was injured at work while breaking up a fight between two inmates at the Detention Center. She was placed on workers' compensation and remained off duty until the doctor treating her said she was able to return to work. Petitioner remained away from her work station and called in to say she was too sick to come to work. On October 10, 1984, Jerry McDonald, Assistant Detention Superintendent, called Bennett and told her that for sick leave to be granted she had to bring in a certificate from a doctor. Bennett indicated she would do so. On October 11, 1984, McDona1d again called Bennett and repeated his message about her needing a doctor's certificate for sick leave to be granted. On October 16, 1984, McDonald again called Bennett about needing a doctor's certificate for sick leave to be granted and that if she remained on unauthorized absence for three consecutive days she would be terminated for having abandoned her position. At this time Bennett said she was too sick to come in. McDonald told her to mail in the doctor's certificate. No such certificate was ever received by the Respondent. October 16, 1984, was a workday for Petitioner and she was scheduled to be off duty on the 17th but to work October 19 through 22, inclusive. Petitioner failed to report for work on any of those days and never presented a doctor's certificate saying she was unable to work because of illness. By letter dated October 24, 1984, sent to Petitioner by certified mail, Petitioner was notified by Respondent that her resignation by reason of abandonment was being processed and of her right to petition for review within 20 days. Petitioner's request for review dated November 7, 1984, was timely filed.
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/ In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2013.
