The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
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 finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 30th day of June, 2005.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Constance Grant Johnson, was licensed by the Department of Education for the State of Florida, Certificate No. 239817, and was employed by the Dade County School Board for sixteen years. On December 20, 1985, Respondent, after a jury trial, was found guilty of two felonies: possession of cocaine and conspiracy to traffic in cocaine. Respondent was sentenced to a prison term of four and one-half years and fined $25,000. Respondent served the sentence and the convictions are on appeal. On December 26, 1985, Respondent resigned her job as a visiting teacher (truant officer) "for personal reasons." On January 8 1986, the School Board of Dade County accepted Respondent's resignation but required: Formal notification to the Educational Practices Commission for licensure investigation; Prevention of any future employment in any capacity by the Dade County Public Schools; and Retention of the information regarding the dismissal action by the Superintendent of Schools as a matter of official record. There is no record to suggest Respondent contested the requirements of the Board's acceptance. On April 27, 1985, Respondent was visiting her cousin, Lola Thomas, in Jacksonville, Florida. Respondent had traveled from Miami on April 26, 1985, and had checked into the Rodeway Inn, room 117, with her companion, Danielle Valdez Baro. Respondent registered as "Mr and Mrs. D. Johnson." Respondent had rented a car for the purpose of this trip. Sometime prior to noon on April 27, 1985, Lola Thomas arrived at the Rodeway Inn to pick Respondent up to go shopping for a family dinner to be prepared later in the day. The two cousins did not go grocery shopping. Instead, they traveled back to the Thomas home where they picked up Arthur Thomas, Lola's husband. The three then traveled to Yancy Park, an area a few blocks from a Pic N' Save store located on Soutel and Norfolk. An undercover sheriff's officer, R. A. Walsh, had met with one Joseph Mack at this Pic N' Save and had arranged to purchase two ounces of cocaine for $4000.00. Walsh then followed Joseph Mack to Yancy Park to complete the transaction. Walsh observed Mack walk to the vehicle wherein Respondent and the Thomases were seated and obtain a white bundle which Mack placed under his shirt. Mack and Arthur Thomas then walked back to Walsh's vehicle to receive payment. Respondent had handed the bundle, wrapped in a hand towel from the Rodeway, Inn, to Arthur Thomas who had, in turn, handed it to Mack. The bundle contained approximately two ounces of cocaine. Respondent's testimony that she did not know the bundle contained cocaine was not credible. Respondent's testimony that she merely passed the bundle at her cousin Lola's direction was not credible. Respondent and Lola Thomas were seated in the front seat of the Thomas' 1984 Pontiac Bonneville. Lola Thomas was in the driver's seat and her husband, Arthur, was seated directly behind her. Respondent admitted she had removed a hand towel from the Rodeway Inn and that the bundle had been wrapped in a similar towel. Respondent claimed Lola Thomas had also removed a second hand towel from the Rodeway Inn, but such second towel was not located and was not listed on the police reports of the incident. Respondent admitted that only one towel was utilized in the criminal proceedings which resulted in her convictions. Respondent's claim that Lola Thomas had taken a towel was not credible. Respondent's testimony that the Thomas vehicle was parked in a center shopping or strip mall and that she only discussed needed grocery items with Lola Thomas was not credible. The weight of credible evidence established the Thomases and Respondent were apprehended at Yancy Park. Dr. Gray, an expert in professional ethics and personnel management, testified that the proof of either Count I or Count II would warrant permanent revocation of Respondent's teaching certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the petitioner enter a Final Order permanently revoking Respondent's teacher's certificate. DONE and ORDERED this 14th day of September, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1987. APPENDIX Rulings on the Proposed Findings of Fact submitted by Petitioner: Accepted in Finding of Fact 1. Accepted in Findings of Fact 1 and 3. Rejected as argument. However, point is addressed in conclusions of law 5. See also Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Rejected as argument. See relevant Findings of Fact 7 and 8. Accepted but unnecessary and argument. See Finding of Fact 10. Accepted in Finding of Fact 12. Rulings on the Proposed Findings of Fact submitted by Respondent. Accepted in Finding of Fact 1. Accepted in Findings of Fact 2 and 11. Accepted in Findings of Fact 6, 9, and 10. But see Findings of Fact 7 and 8. Rejected as contrary to the weight of credible evidence. Accepted to the extent addressed in Findings of Fact 5 and 6 otherwise rejected as contrary to the weight of credible evidence. See Findings of Fact 7 and 8. COPIES FURNISHED: Craig Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399
The Issue The issue in this matter is whether the Pinellas County Sheriff’s Office properly dismissed Respondent from her employment.
Findings Of Fact Parties Petitioner is a public entity commanded by Bob Gualtieri, the Sheriff of Pinellas County, whose authority is set forth in chapter 89-404, as amended by chapter 90-395, Laws of Florida, entitled the Pinellas County Sheriff’s Civil Service System (the “Civil Service Act”). The PCSO is responsible for providing law enforcement and other services within Pinellas County, Florida, including child protection investigative services. As part of his responsibilities, the Sheriff is authorized to impose discipline upon PCSO employees and members who are found to have violated PCSO rules and regulations. He is the final decision-maker for all terminations. At all times pertinent to this case, Respondent was employed by the PCSO as a supervisor in the Child Protection Investigation (CPI) division. Although there was no evidence of Respondent’s job description, the parties stipulated that as part of her position, Respondent was required to comply with all PCSO rules, regulations, general orders, and standard operating procedures, as well as the laws of the State of Florida. At the time of her termination, Respondent had been employed by the PCSO for approximately 17 years. The PCSO’s Investigation of Respondent Pertinent to this proceeding, the PCSO’s General Orders include the following: Rule 5.4 Duties and Responsibilities Rule 5.5 Obedience to Laws and Ordinances Rule 3.18 Unauthorized Use of Automated Systems In August 2017, the Sheriff received a letter from Circuit Court Judge Jack Helinger (judge) informing the Sheriff that Respondent had authored an “evaluation letter” of a parent that had been offered as part of a custody dispute. Respondent’s evaluation letter indicated that she had interviewed the children involved in the custody dispute, and that the children had informed Respondent that the mother “smokes weed and drinks while pregnant” and the mother’s boyfriend made “cigarettes with green stuff” and drank alcohol. The evaluation letter also noted that the children preferred the father’s home because there they did not get yelled at or threatened. The evaluation letter to the judge concluded: While it is the court’s decision regarding custodial matters and visitation, I would strongly recommend not only therapy for each child but also random urinalysis for the mother and her husband, especially concerning in light of mother’s current pregnancy. * * * I would have to support father’s home as the safer environment for the children based on the information gathered from the children’s point of view. When the letter was offered at the custody hearing, the mother and the mother’s attorney were unaware the children had been evaluated by Respondent. Upon further inquiry into the evaluation by the judge, it was disclosed that Respondent was a friend of the father’s mother-in-law, and Respondent had conducted the evaluation “pro bono” as a favor to this friend. The judge wrote to the Sheriff: I am highly concerned about this situation. It was done with the appearance of a formal CPI investigation. Certainly, I and [the mother’s attorney] were led to believe that until I inquired further. I question whether a CPI investigator can conduct an independent evaluation/investigation in your office. Most certainly this was not an independent unbiased letter. It originated from the relationship between [Respondent] Ms. Johnson and [the father’s relative]. Fortunately, because all of this was disclosed in the middle of the Final Hearing, it was not used against the mother. It certainly appeared to me that it was intended to be used for the benefit of the father without disclosure of Ms. Johnson’s position with the Pinellas County Sheriff’s Office or her relationship to this case. Upon receipt of the judge’s letter, the Sheriff referred the matter to the PCSO’s Professional Standards Bureau, which in turn filed a complaint with the PCSO’s Administrative Investigations division (IA). The IA staff investigated the matter as a complaint of misconduct in violation General Order 3-1.1, Rule and Regulation 5.4 pertaining to duties and responsibilities. The PCSO General Orders describe an administrative review board (ARB), which is a “chain-of-command” review board that resolves issues of fact and makes recommendations to the Sheriff regarding the disposition of disciplinary matters. After the ARB completes its fact-finding role, it presents its conclusions to the Sheriff, who makes a decision as to whether to concur with the ARB’s findings and to determine a final disciplinary action. The ARB met on December 14, 2017, regarding the investigation of Respondent. The ARB members reviewed the IA file on Respondent, questioned Respondent, and gave Respondent an opportunity to make a statement. After reviewing the ARB’s findings and recommendations, the Sheriff made the decision to terminate Respondent, finding her guilty of violating Rule 5.4. He also found she had committed additional violations of Rule 5.5, pertaining to observance and obedience to the law, and Rule 3.18, pertaining to the unauthorized use of automated systems. The Sheriff’s unrefuted testimony was that he would have terminated Respondent based solely on the violation of Rule 5.4. When asked about other employees who had been disciplined for violation of Rule 5.4, the Sheriff testified there had been no other employee with conduct comparable to Respondent’s conduct. Respondent put forth a specific employee as a comparator, who was also found guilty of violating Rule 5.4, but was disciplined with a suspension. That employee, however, was disciplined for chronic neglect of duties, not for abusing her position and performing duties without authorization. As such, the undersigned finds there were no similarly situated employees who were treated differently. Violation of Rule 5.4, Duties and Responsibilities Rule 5.4 states: Duties and Responsibilities —The primary responsibility of all Sheriff’s Office personnel is to be aware of their assigned duties and responsibilities. All personnel are always subject to duty and are responsible for taking prompt and effective action within the scope of their duties and abilities whenever required. Based on the stipulation of facts and Respondent’s own testimony at the hearing, it is clear that there are no disputed facts as to Respondent’s conduct regarding the evaluation of the children at the PCSO, or her creation and submittal of the evaluation letter. There was no open child protection investigation against the mother, nor did the PCSO authorize Respondent to evaluate the children or investigate the mother. Respondent interviewed the children while on duty on PCSO property, using PCSO equipment. Later, Respondent met with the mother of the children, and used PCSO staff to research the mother. This meeting took place on PCSO property during her regular shift and was not authorized or related to PCSO business. Even though she led the judge and mother to believe she was acting within her capacity as a PCSO employee, Respondent’s conduct relating to the evaluation and preparation of the evaluation letter was unauthorized and outside the scope of her duties. She abused her position, using it to influence a custody proceeding, and did so for personal reasons as a favor to a friend. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence proves Respondent violated Rule 5.4. Violation of Rule 5.5, Obedience to Laws and Ordinances Rule 5.5 states: Obedience to Laws and Ordinances –Agency personnel shall observe and obey all laws and ordinances. Members are required to personally report all violations which have resulted in their arrest or their non-duty related involvement as a suspect in any criminal action to their supervisor without delay. Upon returning to their first duty shift, they must complete an inter-office memorandum reporting the incident to the Administrative Investigation Division. The PCSO’s determination that Respondent violated Rule 5.5 was based on the premise that Respondent was a “mandatory reporter,” and that she committed a felony when she failed to refer alleged abuse reported to her by the children to the Department of Children and Families (DCF) central abuse hotline, pursuant to section 39.201, Florida Statutes (2017).1/ As an initial matter, the PCSO’s labeling of Respondent as a “mandatory reporter” at the hearing (and in its PRO), is misleading. Technically everyone is a “mandatory reporter” for child abuse.2/ Section 39.201(1)(a) requires “[a]ny person who knows, or has reasonable cause to suspect, that a child is abused . . . by a parent . . . shall report such knowledge or suspicion to” the DCF hotline. (Emphasis added.) The statute does not impose a special duty to report abuse on child protective investigators. Section 39.205 provides penalties relating to the failure of reporting child abuse. It states in relevant part, 39.205 Penalties relating to reporting of child abuse, abandonment, or neglect.— (1) A person who is required to report known or suspected child abuse, abandonment, or neglect and who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Although the Sheriff testified he found Respondent guilty of a Rule 5.5 violation because he believed Respondent had committed a felony, there was no convincing evidence Respondent “knowingly and willfully” failed to report known or suspected child abuse. “Abuse” is defined as: ny willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child. § 39.01(2), Fla. Stat. There was no evidence at trial that the children’s physical, mental, or emotional health was or was likely to be significantly impaired. Moreover, other than the children’s hearsay statements in the evaluation letter, there was no evidence that the mother was actually smoking marijuana or drinking alcohol in front of the children or endangering her unborn child. Although exposure to a controlled substance can constitute harm under the statute, it can only be established by evidence that the parent’s alcohol or substance abuse is “extensive, abusive, and chronic.” § 39.01(30)(g)2., Fla. Stat. Respondent did suggest in her evaluation letter that the judge require urinalysis of the mother, but there was no evidence Respondent believed the children she interviewed were being abused or harmed as defined by chapter 39. Thus, there was insufficient evidence that Respondent had committed a felony. The PCSO failed to meet its burden in proving Respondent violated Rule 5.5. Violation of Rule 3.18, Unauthorized Use of Automated Systems Rule 3.18 states in relevant part: Rule 3.18 Unauthorized Use of Automated Systems * * * b. Members may only use computer equipment as authorized in General Orders. During the course of her unofficial evaluation and her interaction with the mother, Respondent asked a subordinate to do a check on the mother on the Florida Safe Families Network (FSFN), which is a secure database containing confidential and sensitive information. The FSFN is an “automated system” governed by a user agreement with DCF. It is not to be used out of curiosity or to obtain information for personal use. The preponderance of the competent substantial evidence presented at the final hearing, establishes Respondent violated Rule 3.18. Rules of Conduct and Disciplinary Scoring PCSO General Order 10-2 covers discipline and ranks certain violations of the PCSO rules. PCSO General Order 10-2 ranks offenses from Level 1 to Level 5, with Level l offenses being the least severe and Level 5 offenses being the most severe. Rules 5.4 and 5.5 are level 5 violations. Rule 3.18 is a level 3 violation. The General Orders set forth a procedure for assigning points for each sustained violation and provide a table indicating the range of punishment depending on the total points scored. The disciplinary scoring applicable to Respondent's case are calculated as follows: Level 5 violations constitute 50 points for the first infraction, and ten additional points for subsequent infractions; and the level 3 violation is an additional 15 points. Under PCSO General Order 10-2, termination is the appropriate maximum discipline if the violation(s) total 50- points or more. A score of over 50 points warrants a minimum discipline of suspension of five to 15 days. For example, for violations totaling a 60-point score an employee must be disciplined with a seven-day suspension, but can receive a maximum discipline of termination; for a 75-point violation the minimum discipline is a ten-day suspension with a maximum discipline of termination. The Sheriff was within his discretion to terminate Respondent based on his finding of the Rule 5.4 violation alone, which would be assessed 50 points and warrants a range of discipline from a five-day suspension to termination. Based on the disciplinary scoring calculations, a violation of Rule 5.4 (50 points) and Rule 3.18 (15 points) would total 65 points. The minimum disciplinary action for a 65-point violation calculation is seven days; the maximum disciplinary action is termination. Consequently, the PCSO met its burden of establishing sufficient grounds to terminate Respondent from her position as a child protection investigation supervisor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Pinellas County Sheriff’s Office, enter a final order finding: Respondent, Jayne A. Johnson, violated Rules 5.4 and 3.18, and sustaining the Sheriff’s decision to terminate Respondent from her employment with the Pinellas County Sheriff’s Office. DONE AND ENTERED this 16th day of July, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 July, 2018.
The Issue Whether the Pinellas County Sheriff's Office (PCSO or Petitioner) properly terminated Respondent, Richard Stotts, from his employment as a deputy sheriff for engaging in conduct that violated Petitioner's General Order 3-1.1, Rule and Regulation 5.15, regarding the Custody of Arrestees/Prisoners.
Findings Of Fact Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri's responsibilities include providing law enforcement services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to have violated PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 12 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Order 13-3 requires that PCSO members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person. At the time of the events in issue in this case, Captain David Danzig (then a Lieutenant) was assigned to the PCSO Administrative Investigations Division. Sergeant Deanna Carey is assigned to the PCSO Administrative Investigations Division. Sergeant Christina Cuttitta is assigned to the PCSO Administrative Investigations Division. Sergeants Carey and Cuttitta investigated the complaint of misconduct that was filed against Respondent on or about June 11, 2013. The complaint of misconduct alleged that on May 8, 2013, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. At the Administrative Review Board (ARB) hearing, Respondent admitted that his use of force on the inmate was not justified because it did not meet the criteria for use of force. PCSO General Order 10-2 covers discipline and ranks certain offenses. This General Order ranks offenses from Level 1 to Level 5. A Level 5 offense is the most severe. A Level 1 offense is the least severe. Further, this General Order sets forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the violation admitted before the ARB in Respondent's case was 50. Respondent had five carryover points from prior discipline. Under PCSO General Order 10-2, 55 points reverts to 50 points. Under PCSO General Order 10-2, the range of discipline for a 50-point violation is a minimum five-day suspension to termination. Sheriff Gualtieri terminated Respondent from his employment with PCSO effective 1200 hours on July 29, 2013. Exhibit 13 is a series of six video clips taken from various angles in the intake and booking section of the Pinellas County Jail. The six video clips document Respondent's actions. Respondent was not involved in bringing the inmate into the intake/booking area. The inmate, who was yelling obscenities and racial slurs, was standing on the mat to have his picture taken when Respondent left his station, approached the inmate, and proceeded to strike the inmate and take him to the floor. Respondent admitted that he used force on the inmate. Respondent admitted that the use of force on this inmate was not justified. In the past three years, two (former) deputy sheriff were terminated for Level 5 offenses. While the exact offenses involved other Level 5 offenses, the consistency in discipline is constant: termination. There was no justification for Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Richard Stotts, violated General Order 3-1.1, Rules and Regulations 5.15, and terminating his employment. DONE AND ENTERED this 12th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 November, 2013.
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Third Amended Order of Penalty Assessment (“Third AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Gregg Construction is a corporation engaged in business in the State of Florida. Gregg Construction has been operating as a business since November 9, 2007. William Gregg is the owner of Gregg Construction and its sole employee. The address of record for Gregg Construction is 166 Big White Oak Lane, Crawfordville, Florida 32327. On June 15, 2017, the Department’s investigator, Lewis Johnson, conducted a routine visit to a jobsite to conduct a compliance investigation. Mr. Johnson observed Mr. Gregg use a table saw, measure, and cut a piece of wood. Mr. Johnson then observed Mr. Gregg nail the wood to the exterior wall of the home at the jobsite. After Mr. Johnson inquired about the work Mr. Gregg was performing, Mr. Gregg ultimately told Mr. Johnson that he was working as a subcontractor for Respondent. Based on Mr. Johnson’s observations, Mr. Gregg was performing construction-related work at the job site. Mr. Johnson then conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Mr. Gregg. Based on the results of his investigation, on May 10, 2017, Mr. Johnson issued a SWO to Respondent for failure to maintain workers’ compensation coverage for its employees. On May 10, 2017, Mr. Johnson hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”) on Respondent. The Records Request directed Respondent to produce business records for the time period of May 10, 2015, through May 11, 2017. While Respondent provided tax returns, it did not provide sufficient business records to the Department. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, May 10, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Johnson’s observations at the jobsite on May 10, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5645 to calculate the penalty. Classification code 5645 applies to work involving carpentry. Ms. Jackson applied the approved manual rates for classification 5645 for the work Mr. Johnson observed Mr. Gregg perform. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $15.91 for the period of May 11, 2015, through December 31, 2017; and $16.92 for the period of January 1, 2016, through June 10, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Mr. Johnson discovered that Mr. Gregg previously held an exemption, which expired on April 26, 2013. Although Mr. Gregg currently has an exemption, his exemption was not in effect during the audit period. On June 6, 2017, the Department issued its first AOPA that ordered Respondent to pay a penalty of $46,087.72, pursuant to section 440.107(7)(d). On August 1, 2017, Petitioner issued the Second AOPA based upon records submitted by Respondent, which reduced the penalty assessment to $14,752.62. After this matter was referred to the Division, on January 23, 2018, Petitioner filed a Motion for Leave to Amend Order of Penalty Assessment and issued the Third AOPA based upon records submitted by Respondent. Based on the Department’s calculation, the record demonstrates that the penalty assessment, based on records provided by Respondent, would be $9,785.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding the following: that Respondent failed to secure and maintain workers’ compensation coverage for Mr. Gregg; and that Respondent shall pay a penalty of $9,785.50.1/ DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 23rd day of March, 2018.
The Issue This case concerns the charges made by the Petitioner, City of Clearwater, Florida, against its employee Cleven Wyatt, Respondent, which lead to his termination and dismissal as an employee of that municipality. In particular, through charge one, the Respondent has been accused of violating Rule 14, Section 1(e) of the Civil Service Rules of Clearwater, Florida, by being offensive in his conduct toward a fellow employee. Through charge two, the Respondent is accused of committing a level five offense, within the meaning of the Guidelines for Disciplinary Action, City of Clearwater, Florida, in that he had an unauthorized possession of a knife on City property.
Findings Of Fact The Petitioner in this action is a City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community. Among its powers is the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831 pursuant to Chapter 21153, Special Laws of Florida, 1941. This Ordinance deals with the Career Civil Service System for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. In this instance, the Respondent, Cleven Wyatt, has been charged and dismissed from his employment within the Career Civil Service System of the City of Clearwater under the alleged authority set out in the Issues statement of this Recommended Order, pertaining to charges one and two. In association with charge one, it has further been specified that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt, during a verbal exchange between himself and Billy Harbuck, heavy equipment operator, struck Harbuck in the face with his hands and thereafter pulled a knife and threatened Harbuck physically with the knife by using the words, 'I will cut you.'" Further, the specification to charge two states that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt pulled a knife and threatened Mr. Harbuck physically by using the words, 'I will cut you.'" Having been charged with these violations and in keeping with the remedy afforded, the Respondent, pursuant to Ordinance No. 1831, Section 2-38, of the City of Clearwater, Florida, he elected to have a Hearing Officer conduct a formal hearing to determine the accuracy of those charges placed against him. In turn, the City of Clearwater forwarded the case to the Division of Administrative Hearings for consideration. This arrangement was concluded pursuant to the contract between the Division of Administrative Hearings and the City of Clearwater, to provide a Hearing Officer for proceedings of this type. See Subsection 120.65(6), Florida Statutes. On December 15, 1980, the hearing was conducted. The facts in this case reveal that on the morning of September 25, 1980, the Respondent brought his sanitation truck to the transfer station to dump the contents of that vehicle. When he arrived at the transfer station he was approached by another employee, Billy Harbuck, who stepped up to the truck and began a conversation with Wyatt, in which he accused Wyatt of stealing watermelons that were planted in the area of the transfer station. Wyatt then got out of his truck and continued to engage in this conversation which became heated and in the course of the exchange, Wyatt accused Harbuck of "making love" with Harbuck's girlfriend while in the "break-room" of the transfer station. In addition to the verbal intensity of this dispute, there had been finger pointing by both parties and when Wyatt made his remark about Harbuck's alleged amorous adventures, Harbuck struck Wyatt on the shoulder and Wyatt in turn slapped Harbuck in the face. (It was not proven that Wyatt stole the watermelons. The facts did establish that Wyatt's claim related to Harbuck's social life with his girlfriend was a false claim, in that his visit with his companion did net involve sexual intercourse.) Following the physical encounter, the combatants armed themselves. The sequence of their arming was the subject of testimony in this cause in which there was extreme diversity of opinion among the several witnesses who gave testimony. Having reviewed that testimony at length with a view toward the interest in this case held by those witnesses and in particular the combatants and the resulting effect this has had on their creditability, it is unclear which individual armed himself first. However, it is certain that shortly after the blows were struck, Harbuck grabbed a metal stool from the ground. The stool was approximately three feet high and ten inches in diameter. It was also shown that Wyatt took a knife from his pocket and opened it and brandished the knife in the direction of Harbuck. At the time the Respondent and Harbuck took up their weapons, another employee, James Cheatum, stepped between them and grabbed the stool which Harbuck held in his hands and pushed Wyatt away from the affray. When he looked from Harbuck to the direction of Wyatt, he saw the knife in Wyatt's hand. Harbuck being unable to further pursue this circumstance by using the stool, he then grabbed a shovel which was in his vicinity, but was again unable to take further action because he was restrained by Cheatum and a second employee, Grover Wilson. At the time that Harbuck was attempting to pick up the shovel, Respondent still had his knife drawn. Both of the combatants expressed malice through their demeanor at the point where they were armed with the knife, stool and shovel, and both combatants were in fear of their opponent at that juncture. Neither individual attempted to strike the other individual with a weapon. Furthermore, the knife which the Respondent had possession was not a knife which he carried with him as a matter of course. It was a knife given to him by an employee of the City of Clearwater to make repairs on the Respondent's sanitation truck. After that aspect of the circumstance involving the shovel had occurred, the fight ended and at the insistence of the supervisor at the transfer station, the Respondent departed the area. He was later charged with the alleged acts of misconduct.
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race and gender.
Findings Of Fact Respondent is an employer as defined under the Florida Civil Rights Act of 1992. See § 760.02(7), Fla. Stat. Petitioner is a black female. She was hired as a part- time server in Respondent's dining room. She began working in the dining room on December 8, 2001. Her employment was terminated on September 25, 2003. During the time that Petitioner worked in Respondent's dining room, her initial employer was Emeritus Corporation. Subsequently, Petitioner worked for Love Management Company. Petitioner had at least six disciplinary "write-ups" in her disciplinary file at the time of her termination. Clara Poole, a black female, was Petitioner's initial supervisor. Subsequently, Randy O'Brien, a white male, became Petitioner's supervisor. On or about February 2, 2002, Ms. Poole disciplined Petitioner for not completing her daily assignment as the dishwasher. Ms. Poole suspended Petitioner for three days. Petitioner was advised in writing that she had to follow the instructions of her supervisor. From the time that Mr. O'Brien began supervising Petitioner, it was obvious that he and Petitioner had a personality conflict. Mr. O'Brien's management style was very different from the one practiced by Ms. Poole. Mr. O'Brien was abrupt, demanding, and intolerant of any staff member's failure to follow his instructions. However, Petitioner, unlike other staff members, took exceptional personal offense to Mr. O'Brien's negative comments and criticisms. As time went on, Petitioner's relationship with Mr. O'Brien deteriorated to the point that Petitioner frequently complained to Respondent's management about Mr. O'Brien's conduct. There is no persuasive evidence that Respondent's management failed to take Petitioner's complaints seriously and make the appropriate inquiries. Respondent's management counseled Petitioner and Mr. O'Brien, encouraging them to work together in a professional manner. On or about July 24, 2002, Mr. O'Brien disciplined Petitioner for becoming involved in a confrontation with one of Respondent's residents. Petitioner was advised of the need to always be courteous to residents and to call a manager to resolve any conflicts. On or about September 23, 2002, Petitioner was in an automobile accident. The next day, September 24, 2002, Petitioner's husband provided Respondent with a doctor's excuse for her to miss one day of work. Petitioner's husband told Mr. O'Brien that Petitioner would not return to work for one week. Mr. O'Brien informed Petitioner's husband that Petitioner would need another doctor's note to be off from work for more than one day. There is no credible evidence that Petitioner's doctor extended the time she could miss work after the automobile accident. Because Mr. O'Brien did not receive another doctor's excuse, he scheduled Petitioner for work on September 25, 2002, and September 30, 2002. Petitioner did not call or show up for work on either occasion. On September 30, 2002, and October 1, 2002, Mr. O'Brien placed "write-ups" in Petitioner's disciplinary file for violating Respondent "no call, no show" policy. There is no evidence that Respondent took any other disciplinary action against Petitioner for failing to call or show up for work on September 25 and 30, 2002. On or about October 31, 2002, Petitioner complained to Respondent's office manager that her time card was not correct. When Mr. O'Brien questioned Petitioner about her concern, she exhibited a poor attitude. Mr. O'Brien placed a written report in Petitioner's disciplinary file and warned her that she would be terminated unless she changed her attitude. On or about June 13, 2003, Respondent's management counseled with Petitioner and Mr. O'Brien. During the counseling session, Mr. O'Brien apologized for not turning in Petitioner's vacation time. Mr. O'Brien also explained the duties of the night shift and the difficulty he had in scheduling work for the dining room. At the conclusion of the meeting, Petitioner and Mr. O'Brien agreed to try to show more respect for each other. Mr. O'Brien agreed that he would try to give Petitioner at least one weekend off each month. On or about July 2, 2003, Respondent's management counseled with Petitioner because she had not responded in a professional manner when the cook, Ron Heffer, questioned whether Petitioner had taken food home after her evening shift. After this meeting, Respondent established a policy that kitchen staff could eat a meal at the facility but not take any food home. On July 4, 2003, Mr. O'Brien advised Respondent's management that he would inspect bags or items being carried home by kitchen or dining room staff when the bags or items did not reveal the contents. There is no credible evidence that Mr. O'Brien singled Petitioner out in making these inspections. On or about July 7, 2003, Mr. O'Brien placed a "write- up" in Petitioner's disciplinary file. According to the document, Petitioner's team leader complained that Petitioner was not completing her work. On or about July 7, 2003, Mr. O'Brien approached all members of the food-service staff to check the contents in to-go boxes and other bags. Petitioner became upset when Mr. O'Brien attempted to check Petitioner's bag. Petitioner eventually complied with Mr. O'Brien's request, revealing some food, which she disposed of, and other items that did not come from Respondent's kitchen. On several occasions from July 11, 2003, through July 17, 2003, Respondent's manager received complaints from Mr. O'Brien and Petitioner's co-workers about Petitioner's attitude and her failure to perform daily tasks. The manager counseled with Petitioner who took the position that everyone else was lying and that she had done nothing wrong. On or about July 18, 2003, Respondent gave Petitioner a written warning that she would be suspended or terminated if her attitude and performance did not improve. Specifically, Petitioner was advised that she had to clean after serving dinner and refrain from complaining when she was instructed to perform a task. On or about August 2, 2003, Mr. O'Brien noticed that Petitioner was not wearing an apron. He requested another staff member to find out why Petitioner was not in proper attire. Petitioner informed the co-worker that her apron was in the laundry. Subsequently, Petitioner was rude to Mr. O'Brien when he stated, "We are not responsible for washing employees' laundry." On or about September 8, 2003, Petitioner and Mr. O'Brien engaged in a heated conversation about her duties. The argument was initiated by Petitioner and involved her objection to being told that she had to vacuum. Petitioner spoke to Mr. O'Brien in a loud, aggressive tone in front of a resident, potential customers, and other employees. On or about September 14, 2003, Ron Heffer, the cook, was acting in a supervisory capacity. He filed a written report alleging that Petitioner had disappeared for 45 minutes while on the clock and that she had not followed her team leader's cleaning instructions. On or about September 15, 2003, Respondent's manager counseled with Petitioner regarding her failure to improve her performance. Petitioner once again became overly defensive. On September 25, 2003, Petitioner was preparing garnish for lunch. Mr. O'Brien told Petitioner to put on gloves. Petitioner was terminated for not following instructions and continuing to work without putting on gloves, for being insubordinate, for not improving in job performance or attitude. At the same time, Alex Barth, a white male, was also reprimanded for not wearing gloves while handling food. Respondent did not fire Mr. Barth because he had only been on the job for about two weeks. Petitioner had worked at the facility for almost two years. One cannot say that Petitioner and Mr. Barth were similarly situated based on the difference in training and work experience and the difference in the number of prior disciplinary actions. During the hearing, Petitioner testified at length about Mr. O'Brien's unfair treatment. The record indicates that Mr. O'Brien was a bully at times. Many employees found it difficult to work for him. However, there is no persuasive evidence that Mr. O'Brien singled Petitioner out or treated her differently from the way he treated other similarly situated employees. At various times, Mr. O'Brien coarsely reprimanded and/or "wrote-up" other employees. These employees included at least one white female and two white males. On the other hand, Mr. O'Brien had a respectful working relationship with at least two black females. Mr. O'Brien promoted one of them to be a team leader, a supervisory position. There is evidence that Petitioner was overly sensitive to Mr. O'Brien's abrupt management style. Other employees either did as they were told without complaint or stood up to him, resolving daily problems yet maintaining a professional relationship. Petitioner was moody and difficult to train in the standard procedures for all dining room servers. She did not like anyone telling her what to do. As a result of Petitioner's attitude, she had difficulty getting along with most of her peers and supervisors. It was Petitioner's disciplinary history, and not Respondent's discriminatory animus, that resulted in her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief. DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 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 Jacqueline Adams 3842 Bell Road Tallahassee, Florida 32303 Thomas A. David, Esquire Cooper, Byrne, Blue & Schwartz, PLLC 3520 Thomasville Road, Suite 200 Tallahassee, Florida 32309
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following: 2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7), Florida Statutes and 944.09(1)(A). This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules or the IOP are unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
