The Issue The issue in the case is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact 1. Petitioner is 32 years old, unmarried, and a 1992 graduate of Auburn University with a degree in business administration. He attended college on a athletic scholarship and was a captain of the football team. 2. Since graduation he has worked extensively with teenagers as a youth development professional with Boys and Girls Club of Central Plorida, as a recreational leader with Orange County Parks and Recreation; as a substitute teacher at Maynard Evans High School, where he worked with physically impaired students; and as a night monitor at The Center for Drug Free Living. 3. On November 27, 2000, Petitioner submitted an Employment Application with the Department of Juvenile Justice seeking the position of Juvenile Probation Officer. 4. As a part of the November 27, 2000, Employment Application, Petitioner indicated that he had not been convicted, pled nolo contendere, or had adjudication withheld on a crime which is a felony or first-degree misdemeanor. 5. On October 30, 2000, Petitioner executed an Affidavit of Good Moral Conduct which states, in part, "I have not committed an act which constitutes domestic violence .. ." 6. As a result of background screening, it was determined that on a January 14, 1990, Petitioner was charged with "Assault 3rd" in Auburn, Alabama, as a result of a meleé involving members of a fraternity and the football team. On February 19, 1990, the charge was dismissed. 7. The background screening also revealed that on November 11, 1995, Petitioner was charged with Battery (Domestic Violence); was arrested on November 29, 1996 (over a year later) for the offense; and had adjudication withheld after a plea of nolo contendere to the offense on February 5, 1997. 8. On February 5, 1997, Petitioner was sentenced to supervised probation for 363 days, required to attend a batterer's intervention program, and charged $115 in court costs. He successfully completed probation. 9. On December 16, 2000, Petitioner wrote the IG stating: This letter is to clarify why I failed to indicate the offenses on the notarized Affidavit of Good Moral Character. I did not indicate the offenses because I thought you are only supposed to write down convictions of a felony or first-degree misdemeanor. I did not know pleading no contest was counted as guilty. Therefore, I thought the circumstances did not fit my offenses. I conversed with a Department of Juvenile Justice employee when applying for the position, and they [sic] informed me that the Department was only looking for felony convictions. They said a misdemeanor arrest will not disqualify me. This is the reason why I failed to indicate the offenses. 10. On January 11, 2001, Petitioner wrote the IG stating: This letter is to clarify the incident that happened on the evening of November 11, 1995 at Heroes Night Club, Orlando, Florida. This incident was between a Ms. Monica Pryor and myself. At the time Ms. Pryor and I were dating. At the nightclub, Ms. Pryor and I got into an argument and exchanged harsh words that resulted in us pushing and shoving one another. Ms. Pryor then left the nightclub with her girlfriends. She called my cell phone to inform me that her girlfriends were taking her to the police station. We talked later that evening and apologized to each other. During the conversation, she let me know that she had filed charges against me and there was a warrant out for my arrest and would drop the charges in the morning. As far as I can recall from our conversation, Ms. Pryor didn't suffer any physical bruising from this incident. This is one incident in my life that I deeply regret. I feel that I was in the wrong place at the wrong time, doing the wrong thing. This incident happened over 5 years ago. Since then, I have experienced healthy relationships without any hostile contact involved. I have been blessed to counsel several young people and I've helped young men from making the same mistake that I made. I believe this experience has made me a better person and has given me a testimony to share with others. In the past 7.5 years, I have worked in child development, education and recreation. I have worked with the Boys and Girls Club of Central Florida, Center for Drug Free Living, Orange County Parks and Recreation, and I am presently employed with Orange County Public Schools. I ama member of the New Church of Faith in Orlando, Florida were I've helped with youth banquets and church activities. If you have any questions about my spiritual leadership and commitment, please call Pastor David Beacham at (407) 296-2664. 11. Petitioner testified that even though Ms. Pryor had told him that she would "drop the charges," he elected to plea nolo contendere just to get the matter behind him. 12. On January 19, 2001, Petitioner submitted a second affidavit of Good Moral Character indicating that his record contained "one or more of the disqualifying acts or offenses .," and circled the reference to the domestic violence statute. 13. Ken Davis, of Maynard Evans High School in Orlando, Florida, submitted a letter which observed that Petitioner was a "diligent and conscientious person." 14. Yvette Johnson, Universal Orlando, an occupational health and safety specialist, submitted a letter in which she characterized Petitioner as an "asset to the troubled youth in the community . . . never failing to instill the values desired by the church." 15. Ruthenia Moses, who has a Master's Degree in Social Work from the University of Connecticut, who has worked as a clinical therapist, and who was, at one time, the second in command of the Orange County Work Release Center, testified that Petitioner has "an amazing ability to relate to young people," was a "kind and sincere individual of good moral character. I highly recommend him to anyone who works with young people." She further testified that "if I had a business serving youth at risk I would want Petitioner on her team." 16. Christine Barbery, who has a Master's Degree in Legal Studies from the University of Central Florida and is employed by Florida Department of Children & Families as a Family Services Counselor Supervisor, reports that Petitioner is "responsible, hard-working," "setting an admirable example," "an excellent candidate for a Juvenile Probation Officer-type position." She worked for the Department of Juvenile Justice from 1995-1997 and Department of Children and Families since 1997. She has worked with Petitioner with young people at Maynard Evans High School and finds him "caring and dedicated." She "has no qualms about Petitioner's qualifications to be a probation officer." 17. Gloria P. Cleary, Recreation Specialist, Orange County Parks and Recreation, in a letter, characterized Petitioner as a "very enthusiastic and responsible person." She had observed Petitioner in his role as a recreational leader at Liberty Middle School. She further indicated that she would not hesitate in hiring Petitioner in the future. 18. Petitioner was guilelessly candid in his testimony. He is remorseful and contrite regarding the 1995 domestic violence incident. He has conducted his life since that incident in such a way that rehabilitation is indubitably demonstrated. He has an obvious desire to work with troubled teenagers as a Juvenile Probation Officer.
Conclusions For Petitioner: Charles Brown, pro se 7251 Minippi Drive Orlando, Florida 32818 For Respondent: Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation It is recommended that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this “Ir day of June, 2001, in Tallahassee, Leon County, Florida. lec 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 10 Filed with the Clerk of the Division of Administrative Hearings this XI day of June, 2001. COPIES FURNISHED: Charles Brown 7251 Minippi Drive Orlando, Florida 32818 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on October 29, 1997, and was issued correctional certificate No. 175702. At times relevant to the inquiry Respondent was employed at the Gadsden Correctional Facility as a Senior Correctional Officer. Corrections Corporation of America (CCA) ran Gadsden Correctional Facility during the period in question. On February 26, 20004, on a medical enrollment worksheet for insurance provided by CCA, Respondent wrote in the name Tamara S. Ross and identified Tamara Ross as his wife. Similarly, on a dental/disability worksheet for insurance executed on the same date, Respondent wrote the name Tamara S. Ross, in a block within the form which was intended for use in identifying the applicant's spouse. In both insurance plans Respondent, by executing the applications, had added Tamara S. Ross to the coverage. When placing his signature on the application forms to add Tamara S. Ross to the coverage he confirmed, consistent with each form, "I am also certifying that all of the information, including dependent information, that I have provided on this form is accurate." At the time the applications were made requesting that Tamara S. Ross be added for medical and dental/disability coverage as Respondent's wife, the person identified as Tamara S. Ross was not the wife of Respondent. At an earlier time she had identified herself as Tamara Moore. In a document found within Respondent's personnel file maintained by his employer CCA, a reference is made to "Tamara" who is described as "my fiancée." On November 11, 2004, Respondent resigned his position as Senior Correctional Officer at the Gadsden Correctional Facility.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations pertaining to Sections 838.022 and 943.1395(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), while dismissing the part of the case referring to Section 943.1395(6), Florida Statutes (2003), and suspending the correctional certificate held by Respondent for 30 days. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S 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 11th day of August, 2005. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joe L. Ross, III Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent has failed to maintain the qualifications for certification as a correctional officer, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on August 31, 1994. She was issued correctional certificate number 145457. At all times material to this proceeding, Respondent was employed as a corrections officer at the Union Correctional Institution (UCI). She worked the 4:00 p.m.-12:00 midnight shift. R. E. Jernigan, Correctional Officer Inspector at UCI, received an anonymous telephone call on January 6, 1995. The caller stated that Respondent would be attempting to bring drugs into the institution on that date. As a result of this information, Inspector Jernigan arranged for a search of the correctional officers beginning the 4:00 p.m.-12:00 midnight shift. This included a search of the Respondent and her belongings. Correctional Officer Dana L. Alverez assisted in the search. Respondent gave her jacket to Officer Alverez to search. In the upper left pocket of the jacket, Officer Alverez discovered three fingertips cut from a rubber glove, containing what appeared to be marijuana. Officer Alverez removed the substance from the jacket and turned it over to Lieutenant D.L. Nichols. Lieutenant Nichols retained the substance until he turned it over to Inspector Jernigan. Inspector Jernigan notified the Union County Sheriff's Office about the results of the search. Lieutenant Gary Seay of that office responded to the institution. Lieutenant Seay took possession of the substance and placed Respondent under arrest. Lieutenant Seay packaged and sealed the substance in an evidence envelope. He mailed the package via certified mail to the Florida Department of Law Enforcement laboratory in Jacksonville for analysis. Crime Laboratory Analyst Niels H. Bernstein, tested the substance submitted by Lieutenant Seay in this case. Mr. Bernstein examined the package in which the substance was enclosed. He determined that the package was properly sealed. Mr. Bernstein then opened the package and tested the substance according to industry approved methods. He determined that the submitted substance was cannabis, 0.6 grams. UCI terminated Respondent's employment. Respondent entered into and successfully completed a Pre-Trial Intervention Program in regards to the criminal charges filed against her. Upon completion of the program, the criminal charges were dismissed. Respondent's testimony that she did not know her jacket contained cannabis is not credible.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Petitioner enter a Final Order revoking Petitioner's certification as a correctional officer. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Linda L. Paige-James Post Office Box 614 Macclenny, Florida 32063 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
The Issue What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner's Employment at the South Florida Reception Center Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons. Petitioner and his coworkers at times were asked to work double shifts. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination. Petitioner resigned his position effective June 27, 1989. Petitioner's Application for Employment with Respondent In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows: This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities. Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations. These duties are similar to those performed by correctional officers who work at the South Florida Reception Center. There was a delay in the processing of Petitioner's application for employment. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows: We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further. Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation. Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly. Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied: On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer. However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County. Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic. Lost Earnings Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7; $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period). Mitigation At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year. The work was sporadic. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day. 25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and $2,360.00, respectively, working as a substitute teacher for the Dade County School Board. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix). His last day of work for Publix was August 14, 1992. Petitioner earned $2,063.78 working for Publix in 1992. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center"). These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center. Attorney's Fees and Costs On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter: I, the undersigned, do hereby retain and employ the law firm of: SIMON, SCHINDLER & SANDBERG, P.A. 1492 South Miami Avenue Miami, Florida 33130 as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations. I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for out-of-pocket expenses. You are authorized to pay or incur liability for all expenses . . . If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs. I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same. In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement. I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court. I acknowledge that you have made no representations or guarantees concerning the outcome of this case. I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions. Schindler's hourly fee is $250.00. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of $250.00. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case. Through November 11, 1992, the Firm had billed Petitioner a total of $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1993.
