The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
Findings Of Fact Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002. Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358. Five months after commencing her employment with Respondent, Petitioner began to look for a new job. Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001. Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later. Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden. Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live. Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices. In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission. On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president. After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002. Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch. The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from 4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo. Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed." On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason." Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her. Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work. Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home. Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home. No one witnessed the alleged stalking of Petitioner by Mr. Reese. Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
Recommendation is, Based upon the Findings of Fact and Conclusions of Law, it RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 12th day of January, 2005.
The Issue The issues in this case are whether Petitioner violated the Pinellas County Sheriff's Office Civil Service Act and its rules and regulations by engaging in sexual harassment, and, if so, what is the appropriate discipline?
Findings Of Fact Respondent is the Sheriff of Pinellas County and is a constitutional officer for the State of Florida. He is responsible for providing law enforcement and correctional services within Pinellas County, Florida. Petitioner is a 16-year employee with the Pinellas County Sheriff's Office and has never received a derogatory employee evaluation. Between March 2002 and October 2002, Petitioner worked as a detention deputy at the Pinellas County Jail and held the rank of lieutenant. On March 4, 2002, Ms. Lori Atwater commenced employment with the Pinellas County Sheriff's Office and served as an inmate-counselor within Petitioner's unit. Ms. Atwater and Petitioner established a friendly professional relationship that developed into inappropriate conduct. On October 30, 2002, Ms. Atwater filed a written complaint against Petitioner alleging that he sexually harassed her. Ms. Atwater and Petitioner each testified before the undersigned at the administrative hearing and provided conflicting versions of the alleged actions. Ms. Atwater presented more credible testimony. The evidence demonstrates by a preponderance of the evidence that Petitioner, on multiple occasions, exhibited inappropriate verbal and physical behavior toward his subordinate, Ms. Atwater. Specifically, Petitioner periodically told her that he had difficulty avoiding watching her walk across the room. In addition, Petitioner frequently referred to Ms. Atwater, despite her objections, as "Ms. Ashwood," a person Ms. Atwater believed to be of poor reputation. Moreover, on one occasion, Petitioner instructed Ms. Atwater to meet him for lunch and then, during the course of the lunch, broached the possibility of an extramarital relationship with her. On another occasion, Petitioner telephoned Ms. Atwater, inquired about the type of underwear she was wearing and questioned her about private sexual matters. Although Ms. Atwater did not file any formal complaint against Petitioner for the improper verbal comments, she did advise Ms. Jacqueline Hobbs, a nine-year veteran with the Pinellas County Sheriff's Office, that she was experiencing inappropriate verbal contact from an un-named employee. Ms. Atwater was aware of the complaint procedures but explains that she was a new employee in the unit, was on probationary status during the relevant time period and did not want to complain about Petitioner and potentially jeopardize her employment. In addition to Petitioner's improper verbal comments toward Ms. Atwater, the evidence demonstrates by a preponderance of the evidence that Petitioner made unsolicited, inappropriate physical contact with her. On one occasion in May 2002, following a meeting to discuss her job performance, Petitioner insisted on hugging Ms. Atwater and inappropriately continued to hug her even after she resisted and ceased the embrace. On another, yet more egregious occasion on October 24, 2002, Petitioner entered Ms. Atwater’s office under the guise of discussing work-related matter and touched her inappropriately. Specifically, Petitioner entered Ms. Atwater's office, closed her door, approached her from behind, placed his hands around her neck and began kissing her neck and rubbing his groin area against her buttocks. Ms. Atwater turned around, physically resisted him, and told him that she had to handle an emergency outside of her office. Notwithstanding her resistance, Petitioner backed her against the wall, again placed his arms around her and attempted to kiss her mouth. Again, Ms. Atwater immediately resisted. She ducked under his arms and fled her office. Six days later, on October 30, 2002, Ms. Atwater notified Petitioner's superiors of the incident and filed a 3-page formal written complaint outlining his behavior. Shortly thereafter, Major Kirk Bruner referred the complaint to the Administrative Inspections Division for investigation. Petitioner denies Ms. Atwater's allegations that he had inappropriate verbal and physical contact with her and argues that they maintained a friendly professional relationship. He further states that Ms. Atwater continually requested him to get involved with EXCEL telecommunications and was upset that he refused. He also contends that Ms. Atwater became too personal with him and sent him inappropriate e-mails. Considering the evidence, Petitioner's contentions are less credible. Although it is clear that Ms. Atwater sent Petitioner an e-mail on October 23, 2002, stating, "You have a way of getting a message across. Thank you so much," there is no evidence that Ms. Atwater was overly friendly, encouraged his behavior, or engaged in any inappropriate conduct. Following the Division's investigation and report, the Administrative Review Board, comprised of various employees with the Pinellas County Sheriff's Office, reviewed the evidence compiled by the investigators. The Board unanimously determined that Petitioner had violated the Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, as well as Rule 5.16 of the Rules and Regulations of the Pinellas County Sheriff’s Office relating to sexual harassment and discrimination as defined in General Order 3-4. The Administrative Review Board forwarded its findings to Respondent. Petitioner's available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office which allocates a point scale to various violations. The matrix provides that a Level Five offense, which includes sexual harassment, results in a 50-point assessment. Since Petitioner had no previous disciplinary record, Petitioner scored a total of 50 cumulative points which includes a disciplinary range of a five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, Respondent notified Petitioner on March 10, 2003, that he was imposing a fifteen-day suspension, demoting him from the rank of lieutenant to the rank of sergeant and requiring him to undergo sexual harassment remedial training. Following the investigation and imposition of discipline, Petitioner commented to his superior, Captain Peter Nesbitt, that "I was wrong. I spoke to my wife and am forgiven."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding that: Petitioner committed the conduct alleged in the charging document and violated the rules, regulations, and policies of the Pinellas County Sheriff's Office. Petitioner's 15 days' suspension from his employment as a detention deputy with the Pinellas County Sheriff's Office is appropriate. Petitioner's demotion from his previous rank of lieutenant to the rank of sergeant is appropriate. Petitioner's requirement of remedial training related to sexual harassment is appropriate. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 July, 2003. COPIES FURNISHED: B. Norris Rickey, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 33756 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Blvd. Tallahassee, Florida 32308 William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North, Suite 115 Clearwater, Florida 33762 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
Findings Of Fact At the final hearing in this case on June 11, 1987, counsel for the Petitioner, Mary Ann Hunter, made a special appearance but did not present any evidence in support of her contention that the Respondent, Bank of South Palm Beaches, unlawfully terminated her employment for racial reasons, in violation of the Human Rights Act of 1977, as amended. Counsel for the Respondent was present with witnesses, and was prepared to proceed as the Respondent's interests might require. Without any evidence in support of the Petition for Relief, the allegations therein have not been substantiated. Accordingly, the Petition for Relief must be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Mary Ann Hunter be dismissed. This Recommended Order entered on this 15th day of June, 1987, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1987. COPIES FURNISHED: Margaret L. Cooper, Esquire Post Office Drawer E West Palm Beach, Florida 33402 Arlyne G. Warshall, Esquire 415 - Fifth Street West Palm Beach, Florida 33401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Human Relations Commission 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Should discipline be imposed by the State of Florida, Education Practices Commission, against the Respondent's Florida Educator's Teaching Certificate No. 770007, for alleged professional misconduct?
Findings Of Fact Respondent was issued Florida Educator's Teaching Certificate No. 77007 on September 4, 1997, and continued to hold that certificate in an active status until June 30, 2001. Respondent's initial certificate was valid beginning July 1, 1997. The certification covered the subject area of biology. VIRGINIA STATE BAR DISCIPLINE At one time Respondent was a practicing attorney in the state of Virginia. In an action before the Virginia State Bar Tenth District Disciplinary Committee, IN RE: GEOFFREY T. WILLIAMS, SR., RESPONDENT, Docket No. 89-102-0281, dated November 6, 1989, Respondent received a public reprimand. The order setting forth the factual basis and provisions of the Virginia State Bar Disciplinary Rules violated is found as Petitioner's Exhibit No. 8, admitted. Further disciplinary action was taken against Respondent before the Virginia State Bar Disciplinary Board, In the Matter of Geoffrey T. Williams, Sr., VSB Docket Nos. 89-051-0857; 91-05l-0139; 92-051-0185 and 92-051-0558. In these cases orders were entered by the Virginia State Bar Disciplinary Board Chair on February 26, 1993 and May 10, 1993, revoking Respondent's license to practice law in the Commonwealth of Virginia. The opinion and order of revocation set forth facts forming the basis for the decision and identified the rules of the Virginia Code of Professional Responsibility violated by Respondent leading to the discipline imposed. Petitioner's Exhibit No. 7 admitted as evidence is constituted of those orders describing the revocation. The Virginia State Bar found reason to discipline Respondent based upon his treatment of legal clients and business practices with his partners. The grounds for discipline included the recognition that Respondent's conduct involved dishonesty, fraud, deceit, or misrepresentation, adversely reflecting on his fitness to practice law, among other grounds. EXPLOITATION OF AN ELDERLY PERSON/THEFT In State of Florida vs. Geoffrey Thomas Williams, Sr., in the Circuit Court of the Seventh Judicial Circuit, in and for Volusia County, Florida, Case No. CRC00-34359CFAEF, an information was brought against Respondent. Count 1 charged exploitation of an elderly person, and/or a disabled adult in violation of Section 825.103(1) and (2), Florida Statutes. Count 2 charged grand theft in violation of Section 812.014(1) and (2) (c), Florida Statutes. Both counts pertain to Respondent's association with M.B. and her funds. The period envisioned by the counts to the information was from February 1, 2000 through March 27, 2001. Respondent pled nolo contendere to both counts. Respondent was adjudicated guilty of both counts, felony offences in Florida. Respondent was placed upon probation and made to pay court costs and jurisdiction was reserved to determine restitution upon the motion of the State. The period of probation was for five years under supervision of the Department of Corrections. M.B., Respondent's acquaintance, was at the time in question experiencing erratic thoughts, did not have good insight, and evidenced poor judgement. M.B. was being cared for by a psychiatrist. M.B. was a client of a health care company assigned to attend her interest. M.B. was not able to manage her daily affairs. Respondent had expressed an interest in discussing relieving M.B. of her legal obligations. This expression was made to Kimberly Zbin, a case manager with ACT Corporation, the mental health company assisting M.B. as its client. Respondent acknowledged to Linda Basbagill, an investigator who was at that time an investigator with the Department of Children and Family Services, that Respondent received checks from M.B. or M.B. issued checks on his behalf. Examples of those checks are found in Petitioner's Exhibit No. 6 admitted. The dates on those checks correspond to the dates within the criminal information that has been described. EXPERT OPINION Duane Busse is the Director of Professional Standards for the School District of Volusia County, Florida. He holds bachelor's and master's degrees from Florida State University in education. He is an expert in education. He has been a teacher, a principal, has worked at the state level in education, and is a school district level administrator. His present position with Volusia County School District involves the investigation of alleged employee misconduct and the imposition of discipline for that misconduct. Mr. Busse is familiar with the documents that have been described concerning the action taken by the Virginia State Bar Disciplinary Board and the Circuit Court in Florida, Criminal Division. Mr. Busse expressed the opinion that the outcomes in the bar discipline and the criminal court case reduce Respondent's effectiveness as an educator. Mr. Busse expresses the belief that Respondent would not be eligible for any type of employment with the school system where the witness is employed. Mr. Busse expressed the opinion that the Respondent has precluded himself from any level of a trust from parents and students based upon the circumstances in the bar discipline and criminal court case. He premises his opinion on loss of effectiveness on the fact of having been in Volusia County for about 15 years and his familiarity with people in Volusia County as to their expectations for moral standards of teachers.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 231.2615(1)(c), and 231.2615(1)(e), Florida Statutes, set forth in Counts 1 and 3 respectively and dismissing the allegations of a violation of Section 231.2615(1)(f), Florida Statutes, as set forth in Count 3, and imposing permanent revocation of his teaching certificate pursuant to Section 231.2615(1), Florida Statutes. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 31st day of January, 2001. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-013 Geoffrey T. Williams 8161 West Eastman Place Building 16, Apartment 103 Lakewood, Colorado 80227 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
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 Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary D. Latham (Latham), began serving as a member of the Florida Parole Commission (Parole Commission) on July 24, 1992. At the time of the final hearing, he was continuing to serve as a parole commissioner. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an administrative secretary to the general counsel's office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be referred to in this recommended order as Ms. Billingslea. Effective May 27, 1994, Ms. Billingslea was promoted to the position of executive secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of senior executive secretary to the chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as Latham's executive secretary since Latham had previously interviewed Ms. Billingslea for an executive secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed with Chairman Wolson and her administrative assistant, Gene Strickland, the possibility of transferring Ms. Billingslea to Latham's open position. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a commissioner's office because the work in the chairman's office was more administrative than the work in a commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billinglea was reassigned to the position of executive secretary to Latham. Because there is only one position of senior executive secretary at the Parole Commission (the chairman's secretary), this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Latham's executive secretary, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billinsglea understood that the chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will be almost as if he's going to say something but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At this time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. When the Parole Commission denies parole, a report referred to as a 947.18 report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner, and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham was assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told her that she had done nothing to make him approach her in this way but that he did not know what had come over him lately; he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she would not be working for him but that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later that same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair and preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited nor encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billinsglea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill, to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She tried to call the office to advise that she would be late, but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal. After Ms. Billingslea spurned his advances, he began to voice his dissatisfaction with her work hours. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could make which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems, and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland, and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billinglea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office, and after Ms. Billingslea left, he asked to speak with Chairman Wolson. Latham wanted to know what was going, on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching it up with a victory signal and saying, "Yes." He left Chairman Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him, but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was transferred to the position of executive secretary in Clemency. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Gary D. Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed, as well as a public censure and reprimand. DONE AND ENTERED this 8th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1997. Tallahassee, Florida 32399-1050 Gary D. Latham, pro se 4622 The Oaks Drive Marianna, Florida 32446 Mark Herron, Esquire Akerman, Senterfit & Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman, Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues in this case are, one, whether Respondent corruptly used his official positions to sexually harass female subordinates in violation of Section 112.313(6), Florida Statutes; and, two, whether Respondent solicited or accepted sexual favors from female subordinates based upon any understanding that his vote, official action, or judgment would be influenced thereby, in violation of Section 112.313(2), Florida Statutes.
Findings Of Fact Respondent Rudy Maloy (“Maloy”) worked at the Florida Department of Transportation (“DOT”) from 1980 until October 21, 2001. The last seven years of his career in state government were spent in DOT’s Turnpike District Planning Office, where Maloy served as the “Public Involvement Manager.” In that capacity, Maloy conducted workshops and public hearings around the state concerning Turnpike projects. In 1992, Maloy was elected to the Leon County Commission as a Commissioner-at-Large. He was reelected twice, in 1996 and 2000. At the time of the final hearing, Maloy was a sitting Commissioner. Laurie Bradley When Maloy began working in the Turnpike District Planning Office on October 7, 1994, Laurie Bradley (“Bradley”) was already employed there in a career service position, namely, administrative assistant to the director of planning. Though she reported to the director, who was her immediate supervisor, Bradley performed secretarial functions for others in the office, including Maloy after his arrival. Maloy did not have the authority to promote Bradley, increase her salary, or let her go, but he was one of Bradley’s “bosses” in the sense that he could assign her tasks. Maloy and Bradley enjoyed a cordial relationship at work, at least by outward appearances. For example, Maloy frequently gave Bradley (and other co-workers) the complimentary tickets to events such as hockey games and concerts that he, as a County Commissioner, routinely received but could not always use himself. Bradley genuinely appreciated this token of Maloy’s generosity. She thought Maloy was a very friendly person, and she was friendly toward him. The two, in Bradley’s words, “got along fine.” At the final hearing, however, Bradley testified about other acts and practices of Maloy’s that she considered decidedly unfriendly. According to Bradley, Maloy touched her inappropriately on a number of occasions, as follows: Hugs. Bradley alleged that Maloy hugged her——from the side, around the waist——many times, and that after awhile this began to bother her. Shoulder rubs. Bradley alleged that “fairly often” Maloy stood behind her and rubbed her shoulders without ever being invited or encouraged to do so. Kisses. Bradley alleged that in or around February 1996, Maloy kissed her on the cheek. Bradley also claimed that a few weeks later, Maloy kissed her on the mouth, while the two were alone together in an elevator going down at the end of a workday. Caresses. Bradley asserted that on one occasion in May 1996, within hours, ironically, after they had received sexual harassment training, Maloy taunted her by stroking her arm and asking if such behavior constituted sexual harassment. Bradley further averred that Maloy expressed his opinion that if one person is bothered by another’s conduct in the workplace, then the two should resolve the problem privately, rather than reporting it to management. Finally, Bradley alleged that, as part of this episode of teasing, as she perceived it, Maloy stated that he might be able to get her a job with the county having a higher salary than her present position.1 Maloy testified that he never touched Bradley inappropriately, and he specifically denied her allegations to the contrary. Thus, the evidence is irreconcilably in conflict as to whether Maloy sexually harassed Bradley. It is significant, therefore, that not a single witness who testified at the final hearing had actually seen Maloy touch Bradley improperly or in an unwelcome manner. In contrast, one disinterested witness testified credibly that she observed Bradley hug Maloy once or twice as a friendly gesture of thanks for receiving tickets to a hockey game; this testimony is accepted as true. Several witnesses who lacked personal knowledge of any misconduct on Maloy’s part were called to establish that Bradley told others in confidence——at or near the time of the events in question——that Maloy was allegedly harassing her. There is no doubt that Bradley did share such information with others. In fact, her contemporaneous accusations were soon reported to persons in DOT’s management, who understandably insisted that an investigation be conducted. Consequently, Bradley submitted a formal written complaint about Maloy to her employer, and DOT investigated the matter.2 That Bradley complained to others about Maloy in 1996 is circumstantial evidence from which one might infer that the alleged sexual harassment occurred.3 It is relatively weak circumstantial evidence, however, because it ultimately rests largely, if not entirely, on the credibility of the very same person——Bradley——whose testimony it was offered to corroborate. Indeed, drawing the inference largely would beg the question of Bradley’s veracity, for doing so would require that her veracity (which Maloy disputes) be assumed.4 Having carefully weighed and evaluated all of the relevant, persuasive evidence, the undersigned is unable to find, without hesitancy, that Maloy engaged in the conduct of which Bradley has accused him. This determination, it should be stressed, reflects the fact-finder’s judgment concerning the weight of the evidence and nothing more; it is purposefully not a finding regarding what occurred or did not occur between Bradley and Maloy.5 The undersigned affirmatively finds that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Bradley.6 Likewise, it is found, by a preponderance of the evidence, that there was no understanding between Maloy and Bradley that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Bradley——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ophelia Morris In December 1996, Ophelia Morris (“Morris”) replaced Bradley as the director’s administrative assistant in the Turnpike District Planning Office. As had Bradley, Morris served as a secretary to a number of managerial employees, including Maloy. She was a career service employee. Maloy could assign work to Morris, but he lacked the power to promote or fire her. Maloy and Morris became friends, and their friendship deepened over time. By 1999, the two were sufficiently close that Morris routinely confided in Maloy, sharing private information with him concerning the personal problems she was having with her then-fiancé, whom she planned to (and did) marry in May of that year. In June 1999, soon after Morris got married, Morris and Maloy began a mutually consensual sexual affair. While there are some conflicts in the evidence regarding certain immaterial details of their relationship,7 the fact-finder is convinced that neither party entered into this adulterous affair as the result of coercion, bribery, intimidation, harassment, or any type of untoward pressure, either express or implied; rather, each wanted to have an extramarital sexual relationship with the other. Some time in the autumn of 1999, Maloy offered Morris a job as his aide at the County Commission.8 The undersigned is not convinced that Morris had attempted, in any serious way, to break away from the ongoing affair with Maloy before he made this offer of employment. To the contrary, it is found that, more likely than not, Morris remained satisfied with——and had no present intention to end——the affair at the time Maloy proposed to hire her as his aide.9 Morris testified that, after initially demurring, she finally agreed to accept the at-will position as Maloy’s aide, wherein she would serve at his pleasure, but only on the condition that she and Maloy must cease having sex once she was on the county’s payroll. Morris claimed that Maloy reluctantly assented to this condition. Morris started working for Leon County as Maloy’s aide on Monday, December 20, 1999. At a Christmas luncheon that week, Morris met Denise Williams, a one-time aide to County Commissioner Cliff Thaell who was then employed in the county’s Public Works office. The two women quickly became friends and—— within a matter of days——lovers, commencing their own affair shortly after the start of the new year. In January 2000, some secrets were revealed. Denise Williams divulged to Morris that she, Denise, had slept with Maloy and asked whether Morris had done the same. Morris lied to Denise Williams and denied that she had slept with Maloy. Shortly thereafter Morris confronted Maloy with Denise Williams’s disclosure, and he admitted that the two had indeed had sex with one another. That same month, Denise Williams separately told Maloy about the affair she and Morris were having. Maloy was upset, angry, and hurt that Morris had been seeing Denise Williams. He urged her to end the affair with Denise Williams, but Morris did not immediately follow Maloy’s counsel. By February 2000, Maloy’s ongoing interest in Morris’s sexual relationship with Denise Williams was starting to cause Morris to become concerned that she would be fired because of that affair. Consequently, Morris stopped talking to Denise Williams, effectively suspending their relationship, and informed Maloy about the apparent breakup. In the meantime, Morris and Maloy continued their liaison, contrary to the supposed understanding that the sex would stop. At hearing, Morris claimed that she continued to participate in the affair with Maloy only because she feared he would fire her if she refused. However, while Maloy clearly had the power summarily to dismiss Morris, there is no convincing evidence that he ever expressly or impliedly threatened——or even intended——to take such action if she declined to have sex with him. In June 2000, unbeknownst to Maloy, Morris resumed her relationship with Denise Williams. Then, in July or August 2000, Denise Williams left a sexually explicit message for Morris on the county’s voice mail system, in a voice mailbox that Maloy checked on a routine basis. Maloy happened to hear this message before Morris did, and he was not pleased. The voice message incident was the beginning of the end of Morris’s employment as Maloy’s aide. Before long——and for a variety of reasons that are not relevant to this case—— Morris resigned, effective September 8, 2000. Two findings about Morris’s separation are made based on a preponderance of the evidence. First, Maloy did not fire Morris or force her to resign. Second, Morris did not leave because of her sexual relationship with Maloy.10 The purported understanding, mentioned above, that the affair between Maloy and Morris would terminate upon Morris’s becoming Maloy’s aide is the factual linchpin of the Commission’s case as it relates to Morris. The reason for this is that Morris clearly and candidly testified (and the undersigned has found) that her relationship with Maloy was mutually consensual and not the product of sexual harassment during the entire period she was employed with DOT. Thus, to establish that Maloy either intentionally misused his public positions to sexually harass Morris or, by sleeping with her, improperly accepted sexual favors as consideration for some official action, the Commission needed convincingly to distinguish and separate the mutually consensual “DOT phase” of the affair (which did not violate the ethics laws11) from the allegedly coercive “County Commission phase.” The undersigned is not convinced, however, that the subject affair comprised two such distinct phases. The evidence is too much in conflict regarding whether Maloy and Morris had an understanding about——or even discussed——ending their affair effective the date Morris started working as Maloy’s aide for the undersigned to find without hesitancy that such occurred.12 As a result, and in any event, it is not clear to the undersigned fact-finder that the affair between Maloy and Morris was coercive during the time she worked as his aide. The evidence in this regard, as the undersigned has evaluated and weighed it, is much too ambiguous to produce in the mind of the trier of fact a firm belief or conviction that, beginning in January 2000, Maloy was explicitly or implicitly forcing Morris to have sex with him——especially given the undisputed fact that Morris freely and voluntarily had been sleeping with Maloy for the previous six months because she wanted to.13 Additionally, the undersigned affirmatively finds, based on the greater weight of the evidence, that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Morris. Finally, it is found, also by a preponderance of the evidence, that there was no understanding between Maloy and Morris that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Morris. Denise Williams Denise Williams, introduced above, was an aide to Commissioner Thaell from October 1997 through November 1999. At hearing, Denise Williams testified that, in June 1998, Maloy——whom she had known since the mid-1980’s——began to “prey” on her after learning that she was separated from her husband. She alleged that Maloy frequently came into her office, uninvited, to look at her legs, rub her shoulders, or give her a hug. She asserted that this attention was unwanted but admitted that she never told Maloy to stop. To discourage Maloy, she claimed, she tried to dress in a less feminine way. At the same time, she acknowledged, she sometimes hugged Maloy back.14 The picture of Maloy that Denise Williams’s testimony ultimately paints——for which, it must be said, there is no independent, eyewitness corroboration——is that of a man pursuing her with dogged persistence, ignoring her constant attempts to turn him off.15 Maloy, in contrast, suggested that Denise Williams had taken the initiative, signaling her availability by often making mildly suggestive comments to him such as, “You could have been my husband.” It is not surprising, then, that while there is no dispute that the two had casual sex at Denise Williams’s apartment in February 1999, the evidence regarding how this came about is very much in conflict. Denise Williams testified that, despite having no desire whatsoever for Maloy, she finally gave in to his repeated requests for sex in order to “let him satisfy his curiosity” in the hope that he then would quit “bugging” her.16 For his part, Maloy depicted Denise Williams as the initiator who, one Tuesday or Wednesday, unexpectedly told him that her kids would be gone the next weekend and asked him to come over for a “visit” on Saturday, which invitation he accepted. It is undisputed that Maloy and Denise Williams had casual sex a second time, in July 1999, again at her place.17 Given the conflicts and ambiguities in the evidence, the fact-finder is not convinced, without hesitancy, that the events unfolded precisely as Denise Williams has described them. Yet, he is not able to find, by the greater weight of the evidence, that Maloy’s testimony is entirely accurate, either. Thus, there can be no affirmative findings, one way or the other, on the broad question whether Maloy sexually harassed Denise Williams. Concerning the particular charges, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment or “pursuit” of Denise Williams. Nor is he convinced that there was an understanding between Maloy and Denise Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her. These determinations, it should be clear, reflect the fact-finder’s assessment of the quality and weight of the evidence; although properly made by the undersigned in his role as the trier of fact, they are not affirmative findings concerning what occurred or did not occur during the relevant timeframe.18 Tina Williams Tina Williams (no relation to Denise) was Maloy’s aide at the County Commission for about six months, from July 15, 1999, through the end of that year. Before coming to work for Maloy, she had worked as an accountant at the Florida Commission on Human Relations (“FCHR”), the state agency where persons who believe they have been discriminated against can file charges as a first step towards redress. Tina Williams had been introduced to Maloy in late 1998 by a mutual acquaintance, Edward Dixon, who at the time was not only a Gadsden County Commissioner but also was associated with the FCHR in some way. A few months later, Tina Williams had bumped into Maloy again at a local function, and he had asked her to apply for the position as his aide, which she later did. After having received favorable recommendations from Commissioner Dixon and from Ron McElrath, a fraternity brother of Maloy’s who was then the Executive Director of the FCHR, Maloy had hired Tina Williams. Tina Williams claims that Maloy sexually harassed her on numerous occasions, in various ways, starting before she was hired and continuing into September 1999. She testified, for example, that he frequently put his hand on her lap or attempted to do so, hugged and attempted to kiss her, talked dirty on the telephone, and made suggestive comments, including, once when they were on an out-of-town business trip together, “this is so soft” in reference to the bed in her hotel room. Tina Williams testified that the harassment stopped in September 1999, at which point, she asserted, Maloy became increasingly critical of her work and avoided her. Their relationship, she testified, seemed to improve in November 1999, but then in December Maloy asked for her resignation, which she tendered.19 Maloy testified that he hired Tina Williams to be his aide with high expectations concerning her abilities but soon became disappointed in her failure, as he saw it, to measure up. At hearing, Maloy asserted that Tina Williams had simply not worked out in the position for a number of reasons that need not be recounted here. Suffice it to say that Maloy testified he asked Tina Williams to leave in December 1999 because he was generally dissatisfied with her performance on the job. Maloy flatly denies that he ever said or did anything to Tina Williams that could be considered improper or untoward, including touching, kissing, hugging, shoulder-rubbing, suggestive comments, or like conduct. The conflicts in the evidence concerning Tina Williams’s allegations of harassment clearly cannot be attributed to individuals’ unique perspectives or differences of opinion. This is not a situation where two people have described the same historical event in different but reconcilable terms; instead, the testimony has produced two mutually exclusive versions of history. Determining which of the protagonists is telling the purest truth is a difficult task made tougher by several factors. First, there is no independent corroboration of either his testimony or her testimony by a witness having personal, firsthand knowledge of the facts. This is a greater problem for the Commission, of course, because Maloy did not have the burden to prove his innocence. Absent independent corroboration, the conflicting testimony presents a classic “he said-she said” dilemma whose resolution, if one must choose between the competing narratives,20 depends on whether “he” or “she” is deemed to be the more credible witness. In this particular case, because the Commission bears the burden of proving its case by clear and convincing evidence, Tina Williams must be judged not just credible, but considerably more credible than Maloy to sustain a finding of guilt.21 Herein, then, lies the second factor (or interrelated pair of factors) that complicates the fact-finding function: Neither participant’s testimony is inherently incredible;22 and conversely, neither one’s testimony is inherently more credible than the other’s. Tina Williams’s saga of sexual harassment cannot be rejected out of hand as a fabrication; it is obviously not fantastic. Upon hearing her story, one does not think, “That could not possibly have happened.” To the contrary, Tina Williams’s testimony is very believable. And yet, Maloy’s testimony, too, is eminently believable. He has not presented some half-baked alibi that tests credulity but rather has said exactly what one would expect an innocent man, falsely accused of sexual harassment, to say: “I did not do it.” What more, indeed, could he say, if in fact he were innocent? There was, really, no way for Maloy affirmatively to disprove the particular allegations that Tina Williams made. Third, having closely observed both Tina Williams and Maloy on the witness stand, the undersigned is unable to state with assurance, based on their respective demeanors, which of the two was probably telling the truth——or who was not. Both appeared to be sincere in recounting what had happened (or not happened) as they recalled the events in question. Neither appeared to the fact-finder to be lying. After carefully weighing all of the evidence with the foregoing factors in mind, the undersigned is not so convinced by either side’s proof as to conclude with confidence that any particular version of history advanced at hearing is highly verisimilar relative to the competing alternative. To the point, the evidence at bottom does not produce in the mind of this fact-finder a firm belief or conviction, without hesitancy, as to the truth of Tina Williams’s allegations.23 Thus, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment of Tina Williams. Based on a preponderance of the evidence, however, the undersigned finds that there was no understanding between Maloy and Tina Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ultimate Factual Determinations24 The undersigned determines as a matter of ultimate fact that the Commission has failed to prove, by clear and convincing evidence, that Maloy violated either Section 112.313(2) or Section 112.313(6), Florida Statutes, as charged, in relation to his respective associations with Laurie Bradley, Ophelia Morris, Denise Williams, and Tina Williams. It is therefore determined, as a matter of ultimate fact, that Maloy is not guilty of the ethics violations with which he has been charged.
Recommendation The fact-finder having determined that the evidence fails clearly and convincingly to establish a factual basis for culpability on any ground charged, it is RECOMMENDED that the Commission enter a final order declaring Maloy not guilty of violating Sections 112.313(2) and 112.313(6), Florida Statutes. DONE AND ENTERED this 25th day of April, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 25th day of April, 2003.
