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: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, 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 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
The Issue Whether the unit described in the petition is appropriate. Whether the Petitioner is an Employee Organization within the definition of Ch. 447, F. S.
The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's national origin.
Findings Of Fact It is not disputed that Mr. Arugu is a Nigerian resident in the United States, that he held the position of Treatment Counselor with the BSO, that he was discharged subsequent to being charged criminally of certain violent acts, or that BSO refused to rehire him after he was found not guilty of those charges. The BSO is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Mr. Arugu was hired as a substance abuse treatment counselor by Broward County, Florida, for its drug court program, in November 1989. He worked as a mental health specialist for the Broward County Drug Court. The position, with Mr. Arugu as the incumbent, was transferred to the BSO on October 1, 1999. A mental health specialist provides guidance to individuals or groups of persons who abuse legal and illegal substances and provides, among other things, anger management advice. Mr. Arugu's supervisor was Kristina Gulick. Her title was Director of the Department of Community Control. She assumed this position in 2001. Her immediate supervisor is Colonel Wimberly and his immediate supervisor is Sheriff Ken Jenne. Mr. Arugu began working for Ms. Gulick in 2002. Teddy Meisel is the assistant director of the Department of Community Control and reports to Ms. Gulick. He has known Mr. Arugu since 1997. He learned that Mr. Arugu had been arrested sometime after June 20, 2003. Subsequent to October 24, 2003, he reviewed an investigation into the activities of Mr. Arugu and as a result, decided he should be terminated. Although Mr. Meisel was aware that Mr. Arugu was a Nigerian, that fact did not enter into his decision to recommend that he be terminated. He discussed his recommendation with Ms. Gulick, who agreed, and forwarded a recommendation of dismissal to Colonel Wimberly. Ultimately, Sheriff Jenne signed off on the dismissal. The investigation reviewed by Mr. Meisel, Ms. Gulick, and Colonel Wimberly was prepared by Sergeant Wilfred Medina of the BSO's Office of Professional Compliance. He opened the investigation on June 21, 2003, and completed it on October 24, 2003. Sergeant Medina interviewed Mr. Arugu on September 21, 2003, in connection with his arrest by the Plantation Police Department (PPD) on June 20, 2003. The PPD had charged him with two counts of battery on a law enforcement officer, resisting arrest with violence and resisting arrest without violence. A review of the probable cause affidavit prepared by the arresting officers revealed that two PPD officers responded to a domestic disturbance complaint made by Lauretta Arugu, the estranged wife of Mr. Arugu. When the officers arrived at Ms. Arugu's residence, Mr. Arugu struck them repeatedly. The officers used pepper spray to gain control of him and thereafter arrested him. Based on this information, Mr. Arugu was suspended from his employment without pay. He was ordered to report to the Office of Professional Compliance on June 23, 2003, so that he could meet with Lieutenant Arndt of that office, and with Sergeant Medina. During that meeting Mr. Arugu provided the officers with a hand-written letter that was completely different from the version of events provided by the arresting officers. Mr. Arugu asserted that the arresting officers brutalized him. On June 25, 2003, Sergeant Medina learned that Mr. Arugu had been arrested by the Sunrise Police Department (SPD) on September 14, 1997. A report prepared by SPD indicated that on that date two SPD officers observed Mr. Arugu selling shoes from the trunk of his automobile at the Sawgrass Mall. He was arrested for operating a business without a license. After being placed in a patrol car, he exited the vehicle and attacked two SPD officers. Although it is a violation of the Broward County Code of Ethics Manual to fail to report an arrest to one's supervisor, a policy about which Mr. Arugu was aware, he did not inform Mr. Meisel of his arrest by SPD. During the interview, Mr. Arugu did not inform Sergeant Medina of his arrest in 1997 by SPD for the offense of battery on a law enforcement officer. He stated that he had no criminal record and denied ever having been arrested prior to the June 20, 2003, arrest. Sergeant Medina concluded that Mr. Arugu was not a truthful person. During Sergeant Medina's interview, Mr. Arugu made no claim that he was the victim of prejudice based on his national origin or any other status. On July 11, 2003, pursuant to Ms. Arugu's petition, a permanent restraining order was served on Mr. Arugu. The restraining order forbade him from being in the presence of Ms. Arugu or contacting her. Mr. Arugu nevertheless called Ms. Arugu's home and left messages on her answering machine. This was reported to the judge, who issued the order. On October 14, 2003, the judge, who issued the order, found that Mr. Arugu had indeed violated the order and admonished him, but did not incarcerate him. In Mr. Arugu's Employment Complaint of Discrimination, Mr. Arugu specifically alleged that Roy Vrchota, Assistant Inspector General told him, while his criminal case was pending, that he would be reinstated if he was found not guilty at the end of the criminal case addressing the June 30, 2003, incident. Mr. Vrchota testified under oath that he never told Mr. Arugu that he would be reinstated. Upon consideration of all of the facts and circumstances of this case, it is found as a fact that Mr. Vrchota did not tell him that. Mr. Vrchota was the person who discovered the previous arrest by SPD. Mr. Vrchota does not believe that Mr. Arugu is a truthful person. Mr. Arugu never made any allegations to him with regard to being a victim of prejudice. He did not learn that Mr. Arugu was a Nigerian until he was deposed in this case. On September 12, 2003, Mr. Arugu was found not guilty of charges addressing the June 30, 2003, incident. On September 29, 2003, Mr. Arugu sent the BSO a letter asking to be reinstated. In a letter dated December 23, 2003, Mr. Arugu was informed that he was not going to be reinstated. The fact that Mr. Arugu was a Nigerian was not taken into consideration by those in the decision-making process. Mr. Arugu's conduct was contrary to BSO standards and that is why he was discharged.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of October, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Odiator Arugu, Esquire The Florida Law Firm, PLC 1990 West Fairbanks Avenue Winter Park, Florida 32789 Harry O. Boreth, Esquire Glasser, Boreth & Kleppin 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on April 22, 2005.
Findings Of Fact Petitioner is an African-American female who began her employment with Respondent on May 7, 2004. Respondent, the Department of Children and Family Services (Department), is an employer within the meaning of the Florida Civil Rights Act. At all times while she was employed by Respondent, Petitioner worked as a child protective investigator (CPI) and was on probationary status. That is, she had not yet achieved permanent status in the Career Service System and was an "at will" employee. After being hired as a CPI, Petitioner received classroom pre-service training and computer training which is provided to every new CPI. Following this initial training, new CPI's are assigned a limited case load, as was Petitioner. Allegations of Race Discrimination Wilfredo Gonzalez is a child protective investigator supervisor (CPIS) and has been a supervisor for approximately 10 years. At all times material to this proceeding he was Petitioner's immediate supervisor. Mr. Gonzalez is an Hispanic male. After Petitioner was assigned cases, she received additional on-the-job training and coaching by Mr. Gonzalez. Other child protective investigator supervisors and experienced CPI staff were also available to the Petitioner to answer questions. The work of new CPIs is carefully scrutinized by supervisors. They are expected to learn from mistakes and become increasingly proficient at the job. Mr. Gonzalez did not give Petitioner a semi-annual performance evaluation at the mid-point of her probationary period due to workload issues, although he was supposed to have done so. However, Mr. Gonzalez regularly met with Petitioner, in his office and in hers, to discuss the progress of her cases and to advise her of areas in which she needed improvement. He also provided e-mail comments and other instruction with regard to her performance on specific cases as well as on Department policy. He also provided her with reports from Respondent's computer case system, HomeSafeNet, which showed whether or not she was meeting certain performance standards. During these communications with Petitioner, Mr. Gonzalez informed Petitioner of problems with her performance. In addition to Mr. Gonzalez, there are two other CPISs in the Alachua County office of Respondent: Haydee Shanata and Patricia Alvarado, who are white females. In instances in which a person's immediate supervisor is unavailable, other CPISs review a CPI's work and deal with other office issues. Because of the nature of the work involved, CPIs and CPISs have to work weekends, nights, and holidays. If a CPI works at a time that his or her immediate supervisor is not on duty, the CPI reports to the CPIS on duty at that time. During the fall of 2004, Ms. Shanata prepared a holiday "on-call" schedule for December 2004. This was done with input from the other CPSIs. Leave was approved for certain employees, including Petitioner, during the holidays. However, due to some CPIs being out due to illness, the holiday on-call schedule had to be revised so that there would be sufficient staff to cover the holidays. The revisions in the holiday on-call schedule placed Petitioner on-call on days that she originally did not have to work. She was upset to see the revised on-call list. Upon learning that she would have to work on days when she originally was not scheduled, she called Ms. Shanata on her cell phone to ask her about these changes. Ms. Shanata explained that the changes were due to not having enough staff scheduled to cover the work. On December 10, 2004, Petitioner complained to Mr. Gonzalez about the revised holiday on-call schedule. During that meeting, Petitioner called CPIS Shanata a liar to Mr. Gonzalez. In addition, Petitioner wrote an e-mail entitled "Poor Holiday Planning." Petitioner sent the e-mail to the three CPISs, Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado. The e-mail also copied their supervisor, Barbara Ross, and the District Administrator, Ester Tibbs. The e-mail reads in pertinent part: I am writing to express my total dissatisfaction with the planning for the holidays by the supervisors here at the Alachua County office. It is apparent to myself as a new employee and should have been apparent to the experienced supervisors here at the Alachua County office that about half of the current staff here is new. I understand that there are some time difficulties and that in the normal day of conducting business that things can be hectic as you are unaware of what may happen however, there is no excuse for poor planning and then FORCING a new investigator to cover three on call shifts during both Christmas and New Years holiday weekends within a seven day work week when originally being scheduled for only one day. As I know that sometimes duty calls however, no organization should infringe on the personal lives of their employees. From this day on, I will be sure not to make plans with my son, as the supervisors here in Alachua County can easily cover their failure to plan properly by dictating to me what time I can spend with my family and when. Also, I was told in a conversation with Haydee Shanata when the schedules were originally created that I did not want to work any more back to back on-call days (clarified by two days within a three day period) and Haydee assured me that she would not schedule me any more back to back days and then I was randomly selected for two additional on-call days which included both Christmas and New Year weekends without my agreement. This e-mail did not complain of race or sex discrimination. The racial composition of those persons whose on-call schedules were changed is not in evidence. Mr. Gonzalez responded the same day with an e-mail that read as follows: Demetria at the writing of your email you had 21 open cases. I was actually locking a case. A case in which I was helping you by going ahead and editing the evidence entries and also entering the findings that you had failed to enter. I was doing this because I know you have been overwhelmed and also to help you get some cases closed that you are soon to roll-over so that you can attend the conference next week. I locked that case and now you have 20 open cases. I try to provide as much support as possible. Earlier this afternoon I pointed out that Myrtle Hodges will be assisting you with your cases so you can get over that hump created by the number of cases you received in Oct. In addition to that--while on-call supervisor for the month of November I specifically limited the number of cases the trainees would receive. In November you were one of the CPI's with the fewest cases at 9 total. This month CPIS Shanata worked hard to try and prevent those staff who will be here at the end of the month from receiving a lot of cases. You are one of those again who benefited. You have been off rotation since Wednesday and as of today you have received only one case for the month of December. On-call is a function of the CPI and CPIS position. This months on- call was an experience unlike any I've experienced since being a supervisor. I have been a supervisor for quite some time. We limited the leave requests we approved. In addition we tried to help persons plan by preparing and presenting the schedules in advance. Since then we've had a CPI out on extended leave as well as other action that limited the number of staff available to accept reports. Because of this we have had to revise the schedule. No doubt that in the work we do, someone has to work holidays and around the holidays. This IS a job that in a sense infringes on our personal lives. Every time I get a call in the middle of the night to assist a CPI investigating a case can be perceived that way but it is not. It's my job. As supervisors we do the best we can and hopefully in the process we learn along the way. Barbara has come to morning meetings and indicated that when there are concerns you should follow the chain of command. Though you addressed the email to me and the other supervisors you copied Barbara as well as Ester Tibbs. Give us the chance to resolve the issues before you send it up the chain of command. (emphasis in original) Incredibly, Petitioner responded with another e-mail to Mr. Gonzales with copies to Ms. Shanata, Ms. Alvarado, and Ms. Ross, accusing the supervisors of being inconsiderate, not courteous or professional, and that the supervisors "shoved it" in her face. On December 15, 2004, Petitioner wrote an apology for the choice of words she used in the series of e-mails regarding the holiday on-call schedule and for violating the chain-of command. Mr. Gonzalez wrote a letter of counseling dated December 27, 2004, to Petitioner regarding her unprofessional behavior toward Ms. Shanata and the insubordinate and disrespectful nature of her e-mails. Mr. Gonzalez admonished her for not following the chain of command and reminded her that she must treat her supervisors and co-workers with respect and courtesy. He also reminded her that she was not a permanent employee and that failure of her to use appropriate behavior would result in her immediate dismissal. The December 27, 2004, memo was the first time that Mr. Gonzalez had issued a counseling memo to Petitioner. Petitioner believes that her e-mail complaining about the holiday on-call schedule was the trigger for what she inaccurately believes was retaliation. Petitioner was scheduled to attend a conference in January 2005. The conference, referred to as the Dependency Summit, involved participants from throughout Florida and involved discussions and training that was separate from the general training given to CPIs when they begin employment with the Department. At some point, Petitioner's name was removed from the list of persons approved to attend the conference. Of the seven CPIs approved to attend the conference, four were African-American. During the early months of 2005, both Mr. Gonzalez and Ms. Shanata expressed concerns over Petitioner's work performance. Ms. Shanata sent several e-mails to Mr. Gonzalez documenting incidents in which Petitioner failed to respond to her e-mails requesting information or directing action on a case. Of particular concern was Petitioner's failure to contact law enforcement on cases in which law enforcement should have been called, such as cases involving sex abuse allegations. According to Ms. Shanata, if a criminal act has occurred, law enforcement must be notified immediately and they then take the lead in the case investigation. Mr. Gonzalez had instructed Petitioner on several occasions to involve law enforcement immediately in certain types of investigations. On March 7, 2005, Ms. Shanata received a telephone call from Detective Sherry French of the Alachua County Sheriff's Office regarding cases assigned to Petitioner that should have been referred to law enforcement, but had not. Ms. Shanata's supervisor, Ms. Ross, instructed Ms. Shanata to review Petitioner's cases which Detective French called her about. During her review, Ms. Shanata became concerned about Petitioner's handling of a case that involved a child who had been taken to the hospital on December 31, 2004. In that case, the child had tears to her vaginal area, which is an indication of possible sexual abuse. Ms. Shanata noted that Ms. Alvarado had "backed down" the case from being classified as an immediate case to a 24-hour case. In this type of case, it is important that the Child Protection Team become involved immediately to conduct their examination of the child, as vaginal tears heal quickly. Ms. Shanata discussed this case with Ms. Alvarado who recalled the circumstances of the case. According to Ms. Alvarado, Petitioner informed Ms. Alvarado that the Child Protection Team had seen the child, which led Ms. Alvarado to authorize that the case be "backed down." Ms. Alvarado considered receiving inaccurate information regarding a case of this nature to be an extremely serious problem. During her review, Ms. Shanata found other cases in which Petitioner had not followed Department policy and operating procedures. Ms. Shanata reported her findings to her supervisor, Ms. Ross, and to Mr. Gonzalez in an e-mail dated March 10, 2005. On March 24, 2005, Petitioner was directed to take a child to the Child Advocacy Center for a forensic interview. However, she failed to do so. In addition to these job performance issues, Mr. Gonzalez and Ms. Shanata expressed concern that Petitioner was habitually late to morning meetings at which cases are presented and discussed. On March 24, 2005, Mr. Gonzalez completed a Performance Evaluation of Petitioner. Performance ratings range from one to five points, with "5" being the highest rating in any category. A rating of "2" means that the employee's performance sometimes meets expectations and needs improvement. Petitioner received a "2" rating in three performance expectations. Her overall rating was a 2.70. A rating of "3" means that an employee's performance consistently achieves expectations. On March 29, 2006, Mr. Gonzalez wrote a memorandum to Marc Williams, District Operations Manager, detailing concerns about Petitioner's work and recommending that Petitioner be removed from her position. Mr. Williams is a white male. Petitioner was reassigned to a non-CPI position on March 26, 2005. She received the same pay and benefits during her period of reassignment. Consistent with Department policy, the reassignment was done abruptly and Petitioner was no longer allowed access to the Department's case management system. Petitioner requested a meeting with Mr. Gonzalez and Mr. Williams. Petitioner met with Mr. Gonzalez, Mr. Williams and Bonnie Robison on March 29, 2005, to discuss the Department's concerns and to give her a chance to present her side of the story. Petitioner was presented with a copy of her performance appraisal at this meeting. At the meeting, Petitioner requested a list of the issues regarding her job performance and an opportunity to respond to their concerns. The meeting lasted two to three hours. Petitioner was provided a bulleted list of concerns on April 1, 2005, which contained issues of concern that Mr. Williams felt she had not adequately refuted at the March 29, 2005, meeting. Petitioner provided a response on April 6, 2005. Probationary employees may be fired at will. The employing agency only needs to notify the employee that he or she has failed to complete the probationary period. Although probationary employees may be fired at will, Mr. Williams does not lightly recommend dismissal of a CPI investigator. However, Mr. Williams expects mistakes to diminish over time and, in Petitioner's case, the mistakes had not diminished and supervisors found that she was not receptive to coaching. Further, Mr. Williams felt that they had reason to doubt Petitioner's word. He recommended Petitioner's dismissal to Ester Tibbs. Ester Tibbs is the District 3 Administrator of the Department. She has the final authority in making the decision with regard to whether or not to terminate an employee. Ms. Tibbs is an African-American woman. According to Ms. Tibbs, she expects supervisors and managers to present compelling reasons as to why a probationary CPI should not be retained in a permanent status. This is because recruitment and training of CPIs are costly and terminating a probationary CPI interrupts investigations and adds to the workloads of other CPIs. In order to make the decision to terminate the employee, she must be convinced that the Department has provided appropriate training, necessary coaching, and support and that, despite their best efforts, she is convinced that the employee cannot carry out the demands of the job. Ms. Tibbs approved Petitioner's termination. On March 31, 2005, Petitioner filed a Career Service Employee Grievance seeking reinstatement of employment, and modification of her performance appraisal. The grievance alleges that she had been harassed by Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado; that she disagreed with her performance appraisal; and that she was discriminated against based on sexual orientation on July 1, 2005. The grievance does not allege race discrimination. As a probationary employee, Petitioner was not entitled to a grievance process regarding her dismissal. The record is not clear as to whether Petitioner should have been provided an opportunity to grieve the portion of her grievance relating to her performance appraisal, since she had already been informed she was being terminated at the time she filed the grievance. In any event, there is no evidence that not granting her request for a grievance process was based upon race. Other Employees in the Alachua County Office of Respondent Amanda Mash is a senior CPI with five years experience and permanent career service status. Ms. Mash is a white female. She was frequently late to morning meetings. However, if she was going to be late for a morning meeting, she called to let her supervisor know that she would be late. She has turned in cases late. She has not received disciplinary action. Ms. Mash never called a supervisor late at night and failed to inform of critical information; never failed to take a child to a child advocacy center appointment when asked to do so; never failed to respond to e-mails from supervisors asking information about cases; never neglected to submit her files to her supervisor when required to do so; and never called her supervisor a liar. Melissa Delcher is a CPI and is a white female. In February 2005, she interviewed a child in a case that was not assigned to her. The case was assigned to Petitioner. The child had disclosed to Ms. Delcher that he had been hit, but she did not see any visible signs of injury. According to Ms. Delcher, she did not contact the child protection team or law enforcement because the case was not assigned to her. Crystal Long-Lewis, an African-American female, was secretary for Mr. Gonzalez from July 2003 through April 2005. She was terminated from her position for conduct unbecoming a state employee and falsifying documents. She was a permanent career service employee at the time of her termination. It is Ms. Long-Lewis's perception that she was not treated fairly because of her race and her young age. She believed that there was favoritism of white CPIs over non-minority CPIs. Myrtle Hodges, an African-American female, became a probationary CPI when her other job with the Department was privatized. She received a below standards evaluation and was encouraged to resign rather than face termination. When asked was it possible that she was terminated based upon her race, she responded, "No, I don't think I was terminated on race." Torrey Kincade, an African-American male, was a CPI in the Alachua County office until he was transferred to another city where he currently works for Respondent. His supervisor while in Alachua County was Ms. Alvarado. He believes that when he worked for Ms. Alvarado, that she targeted him by giving him more tasks and "riding him" harder than a non-minority CPI. He believes he was held to a different standard regarding the dress code. He also believes that he did not receive as high a pay increase as his coworkers, who did not testify. There was no evidence presented as to employees' salaries or amount of pay increases for Mr. Kincade or any of his coworkers. Regarding his perception of the office while he worked under Ms. Alvarado's supervision, he stated, "I definitely--I can't say its discriminatory behavior, but I could say that each minority in the office was at one point targeted." Monica Felder is an African-American female who was employed by the Department for approximately a year and a-half. She was terminated from employment in January 2006 for personal misuse of the cell phone issued to her by the Department and failure to reimburse the Department for the personal calls. As a permanent career service employee, she appealed her dismissal to the Public Employees Relations Commission which affirmed her dismissal. In March 2005, Ms. Felder had received a satisfactory performance appraisal from Ms. Alvarado. Ms. Alvarado made positive comments on Ms. Felder's March 2005, performance evaluation. In January 2004, an employee of Respondent sent an e- mail to Ms. Tibbs regarding concerns about Ms. Alvarado, including an allegation of racism. Ms. Tibbs determined that an internal investigation was needed, and one was conducted. The investigative report concluded that while certain employees held this perception, there was no evidence that Ms. Alvarado targeted anyone based on race. The remaining allegations concerned Ms. Alvarado's management style. Allegation of Sex Discrimination In July 2004, Mr. Gonzalez was approached by another CPI in his unit. Mr. Gonzalez was informed by the CPI that Petitioner had been seen hugging another female CPI in her office in a "romantic way." He instructed that person not to repeat that information and then conferred with his supervisor at that time, Lori Walker. As a result of hearing this allegation, Mr. Gonzalez called Petitioner into his office and told her that there was a rumor in the office that she was having a relationship with another female employee, that her conduct needed to be professional, and that she should keep her door open when that CPI was in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 29th day of September, 2006.
