The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
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 Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination are whether Petitioner, Kenneth Davis, made sexually harassing statements and made body contact with a female counselor so as to constitute sexual harassment and a hostile work environment, in violation of Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office, and, if so, what is the appropriate penalty.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Respondent, Sheriff Everett S. Rice (Sheriff), is a constitutional officer of the State of Florida, responsible for providing law enforcement and correctional services within the geographic boundaries of Pinellas County, Florida. Petitioner, Detention Deputy Kenneth Davis (Deputy Davis), is a 23-year employee with the Pinellas County Sheriff's Office, having spent his entire career as a detention officer. As a result of years of training and experience, Deputy Davis is intimately familiar with the Sheriff's policy regarding sexual harassment, detention policies, operations, procedures, and the priority of security applicable to detention deputies. The evidence demonstrates that in the collective opinions of those detention deputies who worked longest with Deputy Davis, all agreed that his personality was that of one who "[was] loud and obnoxious--to pretty much everybody," "play[ed] around a lot," "never insulted anybody," and "[didn't] mean any harm." At all times pertinent to this cause, Deputy Davis held the rank of detention corporal until the Sheriff reduced his rank to Deputy and removed him from his position of detention corporal on March 10, 2003. Deputy Davis' chain-of-command consisted of Major Kirk Brunner, Detention and Correction Bureau commander; Captain Nesbitt; Lieutenant Keith George; and Sergeant Buckingham. Deputy Davis did not have authority over Lori Atwater (Ms. Atwater), the complainant in this cause. He was not in her chain-of-command nor was he one of her bosses in the sense that he could assign her tasks. At all times pertinent to this cause, Deputy Davis worked in detention barrack C, North Division. Barrack C is a two-storied structure divided into B block and C block, with each cellblock divided into an upper level and lower level. Deputy Davis had four deputies under his supervision in cellblock C. At all times pertinent to this cause, Control Deputy Salazar worked the control center at barrack C. The control deputy is stationed in a glassed enclosure with clear view of individuals desiring entrance into the waiting room of barrack C and with clear view of inmates desiring to leave the cellblock and enter the waiting room. On or about March 4, 2002, Ms. Atwater, an African- American and a long-time resident of St. Petersburg, Florida, commenced employment with the Pinellas County Sheriff's Office as an inmate-counselor. Ms. Atwater has an Associate of Science degree in Computer Technology Engineering and a Bachelor of Science degree in Management Information Systems. Her inmate- counselor duties consisted of identifying inmates who had family, legal, and personal issues requiring her intervention. The Department of Children and Family Services (DCFS) employed Ms. Atwater for ten years before she began employment with the Pinellas County Sheriff's Office. While employed with DCFS, she worked in food stamps, Medicaid, protective services, adoptions, and several community recruitment programs. DCFS also has a policy against sexual harassment. The Sheriff has adopted Pinellas County Sheriff's Office General Order 3-4, which defines and prohibits sexual harassment. Pursuant to General Order 3-4, sexual harassment is defined as: All unwelcome or unwanted advances; including sexual advances or unwanted sexual attention, whether between person(s) of the opposite or same sex. This includes, but is not limited to, leering, touching, patting, brushing against, hugging, kissing, fondling, any other similar physical contact, or quid pro quo arrangements (i.e., a situation in which an employee is forced to engage in unwelcomed sexual conduct in order to protect or advance his/her job.) Unwelcome requests or demands for favors, including sexual favors. This consists of subtle or blatant expectations, pressures, or request for any type of favor, including sexual favor, including unwelcome requests for dates, whether or not the request is accompanied by an implied or stated promise of preferential treatment or negative consequences. Inappropriate third party comments or one time comments made which do not constitute a hostile work environment, language not directed at the offended member, jokes (spoken, printed or drawn) that are not directed at the offended member or joint banter of a sexual or offensive nature in which the offended member may or may not be a party. All employees of the Sheriff, including Deputy Davis and Ms. Atwater, received instructions regarding the Sheriff's Sexual Harassment Policy. The evidence demonstrates that beginning in March of 2002 and continuing through the months of April and May 2002, Ms. Atwater noticed, without telling him to stop and without reporting her resulting complaint to her supervisor, that Lieutenant George would call her "Ms. Ashwood." At some unspecified time prior to March of 2002, Ms. Atwater concluded that the name "Ms. Ashwood" was offensive. Ms. Atwater based her conclusion on her interpretation and knowledge of the general reputation of a Ms. Ashwood (no first name given) within the African-American community of St. Petersburg. According to Ms. Atwater, Ms. Ashwood was known throughout the African- American community for engaging in sexual encounters with multiple partners. As a direct result of her superior, Lieutenant George, continuously calling her Ms. Ashwood, a name she considered to be sexually offensive, Ms. Atwater chose not to report her sexual harassment complaint against Lieutenant George through the proper protocol. The record contains no evidence that Ms. Atwater asked Lieutenant George what was his intended meaning by calling her Ms. Ashwood. The evidence demonstrates that Lieutenant George, having been involved in both the hiring of Ms. Atwater as well as involved in her performance evaluation, knew her name to be Ms. Atwater. Alleged statements made by Deputy Davis to Ms. Atwater in the cafeteria during a lunch period. The evidence demonstrated that Ms. Atwater and Deputy Davis initially enjoyed a rather cordial relationship at work during the period of March through May 2002, at least by outward appearances. Deputy Davis and Ms. Atwater both attended read- off sessions; on occasions, they walked together from the read- off sessions back to barrack A; and on two separate occasions, they were seated at the same table in the compound's buffet- styled cafeteria. They did not have contact with each other beyond what was necessary in the performance of their respective duties. They did not have contact with each other outside the workplace. On some unspecified date during lunch in the compound cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant George kept calling her Ms. Ashwood. According to Ms. Atwater, Deputy Davis came over to the table where she sat and she allegedly initiated the following conversation: Atwater: I really don't appreciate that, him [Lieutenant George] calling me Ms. Ashwood. Davis: He's probably P-U-S-S-Y whipped and you probably remind him of her. Atwater: He just alluded to--and used the term inside whore. Atwater: What's an inside whore? Davis: That's when you sleep with someone that makes Decisions for your career. Atwater: If I ever get promoted around here it will not be because I've slept with anybody, but based on my own merits. At the final hearing, Deputy Davis denied the allegations regarding the above statements attributed to him by Ms. Atwater. Thus, the evidence is irreconcilably in conflict as to whether Deputy Davis made those statements attributed to him with the intent of sexually harassing Ms. Atwater, and if the statements were, in fact, made, whether his answers were truthful responses to her question. The compound cafeteria has several long tables seating six to eight persons and several shorter tables seating four to six persons. It is significant that not a single witness, from among others who were seated at the same table with Ms. Atwater and Deputy Davis in the cafeteria on that unspecified day, was called to corroborate the statements allegedly made by Deputy Davis to Ms. Atwater. With knowledge of the Sheriff's sexual harassment policy coupled with her prior knowledge of DCFS's similar sexual harassment policy, and having been highly offended by Deputy Davis' conversation, it is significant that Ms. Atwater, whose counseling job included accurate record keeping, made no attempt to record this first incident with Deputy Davis resulting from repeated incidents with Lieutenant George. Additionally, Ms. Atwater chose not to follow protocol and report to her immediate supervisor her complaint of sexual harassment by a relatively new co-worker. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity, thus proving by a preponderance of the evidence that Deputy Davis made unwelcome or unwanted sexual comments or advances and/or unwelcome unwanted sexual demands, nor created a hostile work environment as Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what was said or not said by Ms. Atwater or by Deputy Davis during the alleged conversation that took place on some unspecified date in the compound cafeteria. Alleged intentional body contact by Deputy Davis with Ms. Atwater in the cafeteria buffet serving line. Ms. Atwater further testified that on another unspecified day while she was in the cafeteria buffet serving line fixing her salad, she felt "a brazen--it felt maybe like his [Deputy Davis] radio or something-it was hard--and then he went in my ear 'boo.' It made me jumpy and I made a squealing noise-because I didn't expect anything to braze in the back on my----." Continuing, Ms. Atwater testified that Lieutenant George came in the cafeteria at that time, and she asked him "why don't you tell your friend to just cut it out?" The Sheriff did not call Lieutenant George to testify. No other witness testified to corroborate Ms. Atwater's statements. Deputy Davis denied this second allegation of intentionally making body contact with Ms. Atwater and speaking in her ear. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity and that Deputy Davis engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur on that unspecified date between Deputy Davis and Ms. Atwater in the buffet serving line in the compound cafeteria. It is significant that Ms. Atwater, whose counseling job required accurate and detailed daily record keeping, made no record of Deputy Davis' second alleged sexual harassment of her person. With firsthand knowledge of the Sheriff's sexual harassment policy plus her ten-year experience with a similar sexual harassment policy during her employment with DCFS, Ms. Atwater chose again not to follow proper protocol. She chose not to properly report this second incident to her immediate supervisor. Her second decided refusal to report what she considered sexual harassment by the same co-worker is not a defense, if Deputy Davis was guilty of such conduct, and does not absolve him from liability. Having chosen for the second consecutive occasion not to report the alleged sexual harassment by Deputy Davis does present a significant impediment regarding Ms. Atwater's memory, recall, and credibility. Alleged repeated harassing comments by Deputy Davis resulting from Ms. Atwater's frightened squealing. Concluding, Ms. Atwater testified that "for months" after the undated cafeteria serving line incident, "every time" she would see Deputy Davis (minimum twice a week in barrack C) he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." According to her, these statements allegedly resulted from the cafeteria serving line incident and from a subsequent work related discussion and disagreement between Deputy Davis and Ms. Atwater regarding the form "62" (a form used by inmates requesting to see the counselor). Ms. Atwater, when confronted with what she considered a third but continuing sexual harassment by Deputy Davis, again chose not to follow protocol and report this third incident to her supervisor. It is significant that according to Ms. Atwater, she was initially and had been continuously sexually offended by Lieutenant George calling her Ms. Ashwood. When she inquired of Deputy Davis why Lieutenant George called her Ms. Ashwood, she was again sexually offended by his alleged answer to her question. She turns then to Lieutenant George, who was continually sexual harassing her and (did not ask him to stop calling her Ms. Ashwood) asks his assistance (not to file a proper complaint) but to have Deputy Davis (whose answer to her question about Lieutenant George she considered sexual harassment) to "just knock it off." Regarding her third alleged sexual harassment complaint against Deputy Davis (Ms. Atwater with knowledge that Lieutenant George and Deputy Davis were friends and she admittedly intended to take advantage of their friendship), she went to Lieutenant George, who (1) had continuously called her Ms. Ashwood; (2) was in her chain-of-command; and (3) was also in Deputy Davis' chain-of-command (but not file a complaint against Deputy Davis) and asked if he would "talk to his friend [Deputy Davis]--I don't want to make waves over this-I don't want to make a big to do-if you could talk to him--just have him knock it off." At the final hearing, Deputy Davis denied her third allegation that he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." It is significant that after months and three separate allegations of sexual harassment by Deputy Davis, Ms. Atwater chose not to follow protocol and make a sexual harassment complaint against Deputy Davis to Lieutenant George, who would have been obligated to initiate a formal investigation. She chose instead to ask a favor from one who had continuously called her the sexually harassing name of Ms. Ashwood. The evidence is irreconcilably in conflict as to whether Deputy Davis continually made the alleged sexual and harassing comments to Ms. Atwater during an unspecified number of months. The Sheriff presented no witness to corroborate Ms. Atwater's allegations on this issue. Lieutenant George was not called to testify, leaving Ms. Atwater's hearsay testimony regarding this particular issue without corroboration. For the third time, Ms. Atwater chose to not follow protocol and report her third sexual harassment incident. The fact finder acknowledges that her third decided refusal to report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a third time not to report the alleged sexual harassment by Deputy Davis to her immediate supervisor does present a significant obstacle in the evaluation of Ms. Atwater's credibility. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity that Deputy Davis for months engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur during unspecified months when Deputy Davis may have been in the presence of Ms. Atwater. Allegations that Deputy Davis intentionally delayed or caused delay of inmates desiring conference with Ms. Atwater. Regarding her final allegation of sexual harassment by retaliation against Deputy Davis, Ms. Atwater recalled that on one occasion, Deputy Davis intentionally caused a "two-hour" delay in getting inmates on her list from their cells to the conference area where she awaited them. The purported intent of this alleged two-hour delay was to threaten or to produce a negative consequence regarding Ms. Atwater's performance of her duties. I find that Ms. Atwater's August 9, 2002, memo to her supervisor, Deputy Armsheimer, purporting to be a chronology of events that occurred on August 8, 2002, conclusively demonstrates that Deputy Davis was not the cause, directly or indirectly, for Ms. Atwater's two-hour delay in getting the two inmates she had requested. The evidence demonstrates that Ms. Atwater gave her form "62" list (inmates to be pulled who had requested a conference with her) to the control deputy, Deputy Salazar, in barrack C and waited 40 minutes. Returning to the holding area and inquiring as to the whereabouts of her inmates, Deputy Davis and not Deputy Salazar informed Ms. Atwater that the top three inmates on her list were not there. Ms. Atwater asked Deputy Davis of the inmates' whereabouts, but he gave her no further explanation. Ms. Atwater thereafter called Deputy Hartfield, who is in her chain-of-command, to ask if he would look into the matter and Deputy Hartfield promised to get back to her. Ms. Atwater waited for Deputy Hartfield's return call. After waiting an unspecified period of time and not receiving Deputy Hartfield's returned message, she called Deputy Hartfield a second time and was told that he had relayed his message to control (Deputy Salazar) about one and one-half hours ago. In that message, Deputy Hartfield explained that her first requested inmate (no name given) had been moved to maximum security and her second inmate (Brandon) was written up earlier that morning by him. In her August 9, 2002, memo to Deputy Armsheimer, Ms. Atwater wrote, "the conversation concluded with me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago, I would have just left out of here and could have eaten lunch." It is significant that Ms. Atwater authored her August 9, 2002, memorandum to Deputy Armsheimer, for the singular purpose of explaining the exact cause (and persons involved) of her two-hour plus wait for inmates who were not pulled for her. At the final hearing in May 2003, she contradicts her August 9, 2002, written statements by testifying that Deputy Davis caused her a "two-hour" delay in pulling her inmates. This obvious contradiction is a severe detriment upon her credibility. Ms. Atwater's memorandum to Sergeant Groff, dated October 30, 2002, was written to give a recount of her experiences with Deputy Davis during all times pertinent to this case. She began her memorandum with the statement: "[S]o for the whole story to be clear, I must tell you how we ended up here and start from the beginning." In her first sentence of the second paragraph appears the first conflict in the evidence of record. In that sentence, Ms. Atwater writes, "Shortly after starting to work here, I began to experience unpleasantness from Cpl. Kenneth Davis. His obnoxious gestures, comments and disposition could not be tolerated any longer." (This conclusion consisted of the three separate allegations against Deputy Davis made herein above.) With this opportunity to formally complain of sexual harassment in the work place, Ms. Atwater failed to include the fact that it was she who initially asked Deputy Davis why Lieutenant George called her the sexually offensive name of "Ms. Ashwood." Intentionally choosing to allege that Deputy Davis' answer to her question why Lieutenant George kept calling her "Ms. Ashwood" was the initial sexual harassment that created a hostile work place is contradictory to her testimony. Continuing, Ms. Atwater wrote--"I did tell him that I felt he 'played too much,' and need[ed] to stop moaning and groaning behind me." Even though she recounted moaning and groaning, she specifically omitted her alleged verbatim statements made by Deputy Davis (Finding of Fact 12 hereinabove) when he answered her question "why Lieutenant George calls me Ms. Ashwood." This is significant in that Ms. Atwater's testimony was that Deputy Davis' alleged verbatim statements when he answered her question were so "sexually harassing" that she was "immediately" offended the moment she heard them. Yet, she omits any mention that it was Lieutenant George continuously calling her "Ms. Ashwood" that initially and repeatedly offended her. The name Ashwood she considered had such a negative sexual reputation in the community that she was immediately offended and sexually harassed when Lieutenant George first called her Ms. Ashwood and each time thereafter. She omits any mention that it was her inquiry of Deputy Davis, "why Lieutenant George [sexually harassing her] was calling her the offensive name of Ms. Ashwood" that produced the alleged response. Based upon Ms. Atwater's acknowledgement contained in her October 30, 2002, memorandum to Sergeant Groff, I find that her allegations that Deputy Davis caused a delayed wait of two hours to get inmates pulled and, thus, "creat[ed] a hostile work environment" to be contrary to her August 9, 2002, memorandum to Sergeant Armsheimer, admitting that had she known her inmates were not in barrack C, she would have left and had lunch "one and one-half" hours prior. Ms. Atwater further admits in writing that from May of 2002 forward, she and Deputy Davis "barely" spoke to one another. If Ms. Atwater's memory is presumed to be accurate and she and Deputy Davis discontinued speaking to one another during the March through May 2002 period, it was not logical to conclude that Deputy Davis repeatedly and continually moaned and groaned in her ear for "months" thereafter (i.e. June, July, August, and October). For the fourth time, Ms. Atwater chose not to and did not report this fourth incident to her immediate supervisor at or near the time it occurred. Her sexual harassment complaint against Deputy Davis was filed after her October 2002 complaint was filed against Lieutenant George. Her fourth decided refusal to immediately report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a fourth time not to report the initial alleged sexual harassment by Deputy Davis during the March through May period, when coupled with the contradiction between her testimony that Deputy Davis was the cause of a two-hour delay in pulling her inmates, and her memorandum wherein she acknowledges that her inmates had been written up by Sergeant Hartfield, presents a credibility obstacle. Ms. Atwater makes no further mention of Deputy Davis in her October 30, 2002, memoranda, devoting the remainder to Lieutenant George. She recounts in detail their initial friendly relationship, turning to a cold and unfriendly relationship, the keeping-your-distance treatment, their many phone conversations at work, their lunch dates away from the work place, and their private phone calls when at home, ending on October 24, 2002, with an incident of kissing and Lieutenant George rubbing his groin against her buttocks and her resisting his advances. (See Joint Exhibit J-1.) In her final paragraph, Ms. Atwater relates how, unbeknownst to Lieutenant George, she arranged for a three-way call between herself, Lieutenant George, and her uncle, a City of St. Petersburg employee. She arranged the three-way call for the purpose of securing a witness to corroborate her statements regarding the Lieutenant George sexual harassment encounter. Though her alleged initial sexual harassment was initiated by Deputy Davis and continued for months, Ms. Atwater made no similar attempt to corroborate her claims of sexual harassment against Deputy Davis. Knowing that Deputy Davis was not within her chain-of-command and not in a supervisory position over her, there was no logical reason for Ms. Atwater to fear promotions and job security. Ms. Atwater knew that filing a complaint against a lieutenant within her chain-of- command presented a greater risk than filing a complaint against Deputy Davis who was not in her chain-of-command. Her choosing not to record (or procure corroboration) the Deputy Davis incidents, when coupled with her delay of many months in reporting her compliant through proper channels because of fear of reprisal, rings hollow. It was after the Administrative Review Board had begun an investigation of Ms. Atwater's October 2002 complaint of sexual harassment against Lieutenant George that the Sheriff initiated an investigation of Deputy Davis. Only after her egregious October 24, 2002, incident involving Lieutenant George did she file a subsequent and separate sexual harassment compliant against Deputy Davis. In the absence of corroboration, Ms. Atwater's testimony of a single incident of intentional touching and her testimony of alleged verbatim statements made by Deputy Davis and his unequivocal denial presents a "she said-he said" dilemma. Neither party's testimony is inherently more credible than the other party's testimony. Contrary to the opinion of Major Brunner, who sat on the Administrative Review Board, that when the Administrative Review Board questioned Deputy Davis regarding those allegations, Deputy Davis was "in denial." This assumption and by implication presumed guilt, thereby lending credibility to Ms. Atwater's allegations, is a conclusion not based on fact and is contrary to the evidence adduced during the de novo proceeding. Ms. Atwater's testimony of incidents having occurred over a four-month or more period and the lack of time or specific dates coupled with the contradictions between her testimony during the final hearing and her August 9, 2002, memorandum to her supervisor, creates an unfathomable chasm in the evaluation of her credibility. The Inspection Bureau of the Administrative Inspection Division investigated Ms. Atwater's complaint and submitted their investigative results to the Administrative Review Board, made up of various employees with the Pinellas County Sheriff's Office. The Administrative Review Board determined that Petitioner, Deputy Davis, had violated the Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4: violation of provisions of the law or rules, regulations, and operating procedures of the Pinellas County Sheriff's Office. The Administrative Review Board determined that Deputy Davis' conduct was a violation of the rules and regulations of the Pinellas County Sheriff's Office, Rules 3-1.1 (level five violation) and 5.16, relating to sexual harassment and discrimination as defined in the Sheriff's General Order 3-4. The Administrative Review Board determined that Deputy Davis' available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office that allocates a point scale to various violations. The matrix provides that a level five offense, which includes sexual harassment, results in a 50- point assessment. Deputy Davis scored a total of 50 cumulative points with a discipline range of five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, the Sheriff notified Deputy Davis on March 10, 2003, that he was imposing a ten-day suspension without pay and demoting him from the rank of corporal to the rank of detention deputy. After weighing all the evidence, including the Sheriff's evidentiary presentation of Ms. Atwater's testimony of verbal comments made and intentional body conduct allegedly engaged in by Deputy Davis, this fact finder finds the uncorroborated hearsay evidence insufficient to prove, by a preponderance of the evidence, the allegations that Deputy Davis made sexually harassing verbal comments to Ms. Atwater, and that he made intentional sexually harassing body contact with her, so as to create a hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding that: Petitioner did not commit the verbal and physical conduct alleged in the charging document and that there was no violation of the rules, regulations, and policies of the Pinellas County Sheriff's Office as alleged. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office was therefore inappropriate. Petitioner's demotion from his previous rank of detention corporal to the rank of detention deputy was therefore inappropriate. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office be restored with full detention corporal's pay and benefits. Petitioner be restored to the rank of detention corporal2 and given full duties and responsibilities as previously held. DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2003.
The Issue The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
Findings Of Fact Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002. Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358. Five months after commencing her employment with Respondent, Petitioner began to look for a new job. Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001. Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later. Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden. Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live. Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices. In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission. On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president. After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002. Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch. The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from 4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo. Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed." On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason." Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her. Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work. Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home. Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home. No one witnessed the alleged stalking of Petitioner by Mr. Reese. Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
Recommendation is, Based upon the Findings of Fact and Conclusions of Law, it RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005.
The Issue The central issue in these cases is whether Respondent is guilty of the violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Department of Professional Regulation, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Respondent, Beltran Pages, M.D., was, at all times material hereto, a physician licensed to practice medicine in the State of Florida having been issued license number ME0036079. Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane. During the period February, 1982 through September, 1982, Respondent treated Lynn Harrington (now Lynn DeGrado) at his Boca Raton office which was located in the Weir Plaza Building. This office space was shared with a Dr. Cohn. The Boca Raton office consisted of a waiting area, a hallway with bathroom, and two physician offices. The walls in this facility were not sound proof and noises could be heard, if not distinguished, between the rooms. Mrs. Harrington had a regular Tuesday appointment at 10:00 a.m. During these weekly visits Mrs. Harrington discussed her marital difficulties with Respondent. One of the problems was an affair Mrs. Harrington was having which she did not want to abandon. Mrs. Harrington did not find her husband sexually attractive and, while she hoped the sessions with Respondent would enable her to rehabilitate her marriage, the Harringtons eventually divorced. During the latter months of the marriage, Pat Harrington became aware of his wife's infidelity. Mr. Harrington felt that Respondent had misrepresented progress being made to save the Harrington marriage. Mr. Harrington amended his petition for dissolution of marriage to claim Mrs. Harrington was an unfit mother. In a sworn statement taken October 27, 1982, Mrs. Harrington claimed she and Respondent had had sexual relations during the course of her treatment. This sworn statement was given in connection with a settlement of the dissolution issues. The statement was not to be used in court since the parties had resolved all their differences regarding the children. Later, Mr. Harrington sued Respondent in a civil suit for damages in connection with the claimed sexual conduct. This suit was later dismissed by the court. During the course of treatment with Mrs. Harrington, Respondent had many frank, open conversations of a sexual nature with her. These conversations included discussions of Mrs. Harrington's affair and her fantasies. During this time the Respondent did not engage in sexual intercourse with Lynn Harrington. Mrs. Harrington's testimony that she and Respondent had engaged in sexual intercourse was not credible. Mrs. Harrington was unable to describe with any detail any incident or time during which such conduct occurred. During the period June, 1983 through November, 1984, Respondent treated Lorry Thomas at his Delray Beach office on Linton Boulevard. The walls in Respondent's Delray Beach office were sound proof. Lorry Thomas came to Respondent with a history of depression. In addition to prescribing medications for her, Respondent saw Mrs. Thomas on a weekly basis. During these sessions Respondent and Mrs. Thomas engaged in frank, open discussions of a sexual nature. These discussions led to further activities which ultimately resulted in Respondent and Mrs. Thomas engaging in sexual intercourse. The Respondent engaged in sexual intercourse with Lorry Thomas during the time she was being treated as his patient. Following the sessions with Respondent, Lorry Thomas would often emerge to the outer office in a rumpled, upset condition. This condition was observed by Respondent's receptionist/secretary, Jolene Stratton. When Mrs. Thomas determined she could not continue as both a patient and a lover, she elected to cancel appointments in an effort to continue seeing Respondent. During the course of her treatment with Respondent, Mrs. Thomas was married and living with her husband, Mike. When Mike was transferred to California, Mrs. Thomas moved there also but continued written or telephone communications with Respondent. In December, 1984, Lorry Thomas went to see a clinical psychologist in Santa Clara, California, named Jean Bayard. Mrs. Thomas complained of a despair in her life and an uneasy feeling regarding her marriage. During the course of her discussions with Dr. Bayard, Mrs. Thomas disclosed her past sexual relationship with Respondent. On one occasion Respondent "made a pass" at and kissed Ms. Stratton. This incident occurred when they were viewing pictures in a magazine featuring nude females. Respondent's denial of the sexual relationship with Lorry Thomas was not credible. It is improper for a physician to engage in sexual intercourse with a patient during that patient's treatment. Such conduct is contrary to acceptable standards for psychiatrists.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulations, Board of Medicine enter a Final Order dismissing Administrative Complaint (#30291), Case No. 87-4157. It is further recommended that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint (#70999) , Case No. 87-1882, imposing an administrative fine in the amount of $5000, suspending Respondent's license for six months, and placing Respondent on probation for a period of two years with appropriate supervision and restriction, and requiring such continuing education programs as the Board may deem appropriate. DONE and RECOMMENDED this 31st day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1182, 87-4157 Rulings on Petitioner's Proposed Findings of Fact: Paragraphs 1, 2 and 3 are accepted. Paragraph 4(a) is rejected as argumentative. Paragraph 4(b) is rejected as argumentative. To the extent paragraph 5 finds Respondent and Lorry Thomas engaged In sexual Intercourse during the time she was in treatment such paragraph is accepted. Otherwise, the paragraph is rejected as unsupported by the record ("wide variety of sexual activity") or argumentative. Paragraph 6 is rejected as contrary to the weight of the evidence. Paragraph 7 is rejected as contrary to the weight of the evidence. With regard to paragraph 8, only to the extent that Respondent and Lorry Thomas engaged in sexual intercourse during the time she underwent treatment is the paragraph accepted. As a matter of law, there would be a presumption she was not consenting. Otherwise, paragraph 8 is rejected as contrary to the evidence. COPIES FURNISHED: William O'Neil, Esquire Jon King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry D. Dennis, Jr., Esquire 1401 East Atlantic Boulevard Pompano Beach, Florida 33060 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent, specifically sex discrimination in the form of sexual harassment due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a Caucasian female, from sometime in December of 2003 until termination of her employment on June 21, 2004. Petitioner worked in Respondent’s warehouse facility from December, 2003 until sometime in February, 2004, when she was transferred to one of Respondent’s retail stores, the Ocala store, where she worked until she was transferred back to the warehouse at the end of May or beginning of June, 2004. Petitioner conceded at hearing that she was terminated after she argued with her supervisor and called her a bitch. Petitioner does not believe that she was terminated on the basis of her sex. During the course of her employment, Petitioner alleges that Respondent’s president, Barry Lay, made inappropriate comments to her of a sexual nature and touched her in an inappropriate way twice. All alleged sexually inappropriate conduct occurred from December of 2003 through February of 2004, during the period of time Petitioner worked in Respondent's warehouse facility. Petitioner testified that Barry Lay engaged in the following inappropriate conduct: At the end of her initial employment interview when she was hired, and out of the presence of other witnesses, Barry Lay allegedly said to her, “If we were to fuck that’s nobody’s business but ours.” In her charge of discrimination, Petitioner alleged that this statement was “said in front of witnesses.” Due to Petitioner's inconsistencies in testifying, her demeanor while testifying and Barry Lay's candid testimony of denial with regard to making such statements to Petitioner at any time, Petitioner's allegation is not credited. Petitioner testified that, right before Christmas of 2003, Barry Lay told her, "if I would let him eat me out just one time I wouldn't think about any other man." (T. 23). Petitioner testified that other witnesses, including her mother, were sitting nearby at a processing table when this comment was made. No witnesses corroborated Petitioner's testimony on this allegation and, coupled with Barry Lay's denial testimony, Petitioner's allegation is not credited. Petitioner testified that Barry Lay grabbed her face and tried to kiss her about the same time as he allegedly made the comment discussed above. Again, Petitioner alleges that witnesses were present, but all witnesses testifying in the matter, including Barry Lay, denied that such an incident occurred. Petitioner's testimony on this point is not credited. Petitioner also testified that Barry Lay grabbed her hips and tried to pull her from behind when she was bent over at a refrigerator. The allegation was denied by Lay and no corroborating testimony was presented. Petitioner's allegation is not credited. On one occasion, Barry Lay overheard conversation between Petitioner and her mother regarding their breast size and that they could form the “little titty committee.” Lay commented to the duo that both of them could be president of the committee. Barry Lay never attempted to initiate a romantic relationship with Petitioner and never threatened her with job transfer or termination if she failed to provide sexual favors. On one occasion during the course of Petitioner's employment, when employees were discussing a rumor that Barry Lay was having an affair with several people at one time, he overheard the discussion, became irritated, and addressed the employees as a group saying, “It doesn’t matter if I’m fucking you, you, you, or you, it’s none of your business.” Petitioner was transferred to the Ocala Store during the course of her employment to assist her in getting her children to day care on time. Additionally, the store hours were more suitable to her schedule at the time. Petitioner made sexual remarks, participated in discussions of a sexual nature, or participated in sexual horseplay in the workplace during the course of her employment with Respondent. Petitioner was heard and observed to smack or slap Barry Lay’s bottom and say, “I want a piece of that.” Barry Lay did not do anything to provoke Petitioner’s conduct, but responded by saying, “if you did, you’d never go back to your boyfriend.” While at work Petitioner discussed having oral sex with her boyfriend and the length and frequency of those encounters. During Petitioner's assignment to the Ocala store, she developed problems with absenteeism from the job. She quit calling in when she unable to work and demonstrated a poor attitude when she was at work. As a consequence, Petitioner was transferred back to Respondent's warehouse, where any absenteeism by the Petitioner would result in less of a hardship to operations. The transfer occurred at the end of May or beginning of June, 2004. After Petitioner was transferred back to the warehouse, she continued to exhibit a poor attitude and unacceptable conduct while at work. In June of 2004, just before she was terminated, Petitioner screamed at her supervisor that she was not going to perform a requested task due to medical restrictions. The supervisor informed Petitioner that she was not being asked to perform the task by herself, but simply to assist. Petitioner began using abusive language to the supervisor, calling her a “bitch.” Petitioner was asked to leave, but replied that she would not unless and until the supervisor “fucking” fired her. Petitioner pushed the supervisor and call her a “fucking whore” and “bitch.” Eventually, after using further epithets, Petitioner left the premises. Barry Lay did not witness the argument between Petitioner and the supervisor, but when he was later informed he instructed the supervisor to tell Petitioner that her employment was being terminated. The decision to terminate Petitioner’s employment was communicated to her the next day. Petitioner's stated response to the supervisor, before walking away, was “get fucked.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 4th day of October 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2005. COPIES FURNISHED: Kenneth M. Hesser, Esquire Seven East Silver Springs Boulevard Suite 300 Ocala, Florida 34470 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope and Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether just cause exists within the meaning of Section 231.36(1), Florida Statutes (2000), to discipline the Respondent for alleged sexual harassment as a result of inappropriate touching.
Findings Of Fact The Nassau County School Board (Petitioner) employed the Respondent as a fifth-grade teacher. The Petitioner took the action giving rise to this dispute and formal proceeding, that is, it suspended and then terminated the Respondent from his teaching position. The Petitioner referred this matter to the Division of Administrative Hearings to conduct a formal proceeding and hearing. The Respondent Bernice Lamar Miles is an annual contract teacher, employed as such by the Petitioner at times pertinent hereto. He was employed at Emma Love Hardee Elementary School and had been employed there for approximately four years. A.P., C.B., J.P., and S.A., at all times pertinent hereto were students in the fifth grade, with Ms. Helen Edenfield as their primary teacher, at Emma Love Hardee Elementary School. During the fall semester of 2000 the Respondent taught approximately 540 students including those four, teaching them art and physical education. During the fall semester of 2000 the Respondent was scheduled to be the cafeteria monitor between 11:50 a.m., to 12:20 p.m. His duties, as cafeteria monitor, were to ensure the smooth transition of classes of students to and from the cafeteria. In doing so he attempted to maintain order, but typically permitted a more relaxed atmosphere than was the case in the typical classroom situation. There were at least ten other teachers and/or teacher's aides in the cafeteria eating with their classes or picking up or leaving their classes at the cafeteria on that date, between the times of 12:15 p.m. and 12:30 p.m. Between the times of 12:20 p.m. and 12:25 p.m., there were at least six teachers and/or teacher's aides in the cafeteria. There would also typically be some parents, food servers and/or custodians present during these time periods in the cafeteria. Also, on November 20, 2000, between the times of 12:20 p.m. and 12:25 p.m., there were approximately 200 students present in the cafeteria with classes entering or leaving the cafeteria about every five minutes. On November 20, 2000, there were no physical obstructions in the cafeteria that would interfere with any person's direct line of sight towards the stage where A.P., C.B., and the Respondent were standing at the relevant time. The Respondent's Exhibit A accurately depicts a general diagram of the cafeteria and was used for that demonstrative purpose at hearing. Ms. Edenfield's class was in the cafeteria on November 20, 2000, and she was scheduled to pick them up to return to the classroom at 12:25 p.m. The Respondent, therefore, called Ms. Edenfield's class to stand by the stage after they had finished eating lunch to await Ms. Edenfield coming to pick them up. While standing in front of the stage A.P., a fifth- grade student, called the Respondent over to ask him a question. On that date the Respondent did not know the first or last names of either A.P. or C.B. The Respondent, standing near both near A.P. and C.B., spoke to them about the cold weather that day and their decision to eat lunch outside without wearing warmer clothing. He typically speaks to students in the lunchroom and jokes with them, as it is a more relaxed atmosphere than in the classrooms. The Respondent typically is animated when he converses with people. It is quite common for him to touch an individual, either male or female while conversing with them. He speaks in this manner with both male and female and adults and children alike. This manner in which the Respondent makes physical contact with teachers or students while conversing with them is innocuous and has no inappropriate intent. The Respondent does not remember coming into physical contact with either A.P. or C.B. in the cafeteria on November 20, 2000. He did not touch either of them in an inappropriate manner on that date. He merely touched the students, if at all, in an effort to determine if they were cold from being outside without a jacket or sweater or possibly touched A.P. in an effort to fix her collar or neckline, which was askew. Although A.P. and C.B. were standing beside each other within arms length of each other on this occasion when they described the Respondent touching them, neither of these students witnessed the Respondent's alleged touching of the other. S.A. was also a student of the Respondent's in his art and physical education classes in the Fall semester of 2000. She was in the same class as A.P., C.B. and J.P. S.A. has never been touched inappropriately by the Respondent and has never witnessed the Respondent touch anyone in an inappropriate manner. S.A. was present in the cafeteria on November 20, 2000. At the time of the alleged inappropriate touching of A.P. and C.B., S.A. was standing in line next to A.P. and C.B. S.A. observed the Respondent come into physical contact with A.P. in the vicinity of her neckline and witnessed the Respondent fix A.P.'s collar which was askew. S.A. did not observe the Respondent touch C.B. at all. When Ms. Edenfield arrived to retrieve her class from the cafeteria at approximately 12:25 p.m., that day, the Respondent was standing at the microphone. The cafeteria, with approximately 200 students present, including Ms. Edenfield's class, appeared to her as it typically does. Just as the school day ended on November 20, 2000, A.P. reported to Ms. Edenfield that the Respondent had grasped the front of her shirt. A.P. demonstrated the touching with both hands to Ms. Edenfield, grasping the front neckline of her shirt and pulling outward. C.B. did not report any touching by the Respondent to Ms. Edenfield that day. Ms. Edenfield had A.P. go to the principal's office and report the alleged incident to Ms. Grondin, the principal. Ms. Edenfield later learned that C.B. must have accompanied A.P. to see Ms. Grondin. In any event, at least, she observed A.P. and C.B. later, back in the room, working together on a draft of a statement of what allegedly occurred between the Respondent and A.P. in the cafeteria. C.B., at some point later, apparently reported an alleged touching by the Respondent involving his putting his hand approximately half its length into the front of her shirt and purportedly incidentally touching the strap of her bra. S.A. who was standing at arm's length distance and who saw the Respondent straighten the collar of A.P., saw no touching at all of C.B. on the occasion in question in the cafeteria. J.P. was also a student in Ms. Edenfield's class, and in the Respondent's class, during the Fall semester of 2000. During that time prior to Thanksgiving, or prior to the November 20, 2000, alleged incident, J.P. contends that the Respondent touched her from four to six times on her back with his hand going inside her shirt. J.P. stated that when the Respondent patted her on the back he would occasionally remark that her art work was good and make other comments of that nature. J.P. testified, on cross-examination, that the alleged placing of the Respondent's hand inside her shirt did not occur on each of those occasions and then abruptly changed her testimony, upon re-direct, to state that the Respondent put his hand inside her shirt on every occasion. J.P. did not report the alleged inappropriate touching incidents immediately after they occurred. J.P. talked with A.P. on November 20, 2000, when A.P. contended that the Respondent had touched her. On the evening of November 20, 2000, A.P.'s mother called J.P.'s mother regarding A.P.'s allegations. Following that conversation, J.P.'s mother woke J.P. up to speak with her about the Respondent. The next morning, prompted by and accompanied by her parents, J.P. complained to Ms. Grondin, the school principal, about the Respondent's alleged inappropriate touching of her. The Respondent frequently patted students on the back for the purpose of consolation, encouragement or in a congratulatory manner. The Respondent pats the back of both male and female students many times a day. When the Respondent patted J.P. on the back, he would praise her regarding the quality of her art work and make other congratulatory comments to her. The Respondent has no memory of ever placing his hand on J.P.'s front or back in which any part of his hand protruded beneath her clothing. He never intentionally came into contact with the bare skin on J.P.'s back. It is determined that the Respondent did not touch J.P. in an inappropriate manner during the fall semester of 2000. If he did touch J.P. it was in an innocuous manner in which he touches all his students male and female. The testimony by J.P. that the Respondent put his hand beneath her cloths or inside her shirt is not persuasive and is not credible. None of the three complainants' academic performance appeared to have suffered during the time of and as a result of the alleged conduct of the Respondent. In fact, J.P. was a straight "A" student, while A.P. and C.B. were straight "A" students or "A/B" honor roll students. There is no evidence of any conduct or attitude on the part of the three complainants, before the proceeding, which would indicate that they were upset or nervous concerning any attitude or conduct on the part of the Respondent. The School Board maintains a policy prohibiting sexual harassment. Section 3.54 of the Nassau County School Board Rules contains that policy. The policy defines "Sexual Harassment" as: Consisting of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when . . . such conduct substantially interferes with . . . a student's work performance or creates an intimidating hostile or offensive . . . school environment. The Respondent was disciplined by the Board for violating its sexual harassment policy, Section 3.54. Specifically, the "inappropriate touching" alleged in the letter of suspension of November 22, 2000, referred to the prohibited "inappropriate touching" in the Board policy which is designated the prohibition of sexual harassment. Dr. Ruis, the superintendent, opined that the alleged touching by the Respondent was inappropriate based upon his interpretation of the sexual harassment policy of the School Board. His interpretation did not take into account any intent requirement which the Board policy itself does require. His opinion that the touching, if it occurred, was inappropriate and that the Respondent had lost effectiveness based upon the incident becoming public knowledge is wholly dependent upon the complete accuracy of the students' allegations and his interpretation of the School Board policy which will be treated in the Conclusions of Law below. It is determined that the testimony offered by J.P., A.P. and C.B., is not persuasive. It was not preponderantly demonstrated by their testimony that the touchings or all of them even occurred at all, aside from the one occasion when the Respondent straightened A.P.'s collar, which testimony was corroborated by the testimony of J.A. Moreover, even if some of the touchings occurred, it was not shown that they were inappropriate or had any sexual intent or motive because, for one thing, testimony concerning whether the Respondent's hand was beneath any of the complaining witnesses' clothing or not or the degree to which it purportedly was, was contradictory and, under the totality of the circumstances found above is simply not credible and persuasive. Consequently, to the extent that any touching occurred at all, it was not shown to be other than a mere innocent, innocuous pat on the back, or similar touching, with no sexual intent, motive or overtones associated with it. Given the totality of the circumstances established by the above Findings of Fact, as to where and under what conditions all of the touchings occurred, if at all, and particularly those described by J.P. and C.B. as purportedly having occurred on their persons at the dates, times and places described in their testimony, it is determined that, if any touching occurred at all, it was innocuous, innocent and of a non-sexual intent, and nature. Therefore, it was not inappropriate.
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 School Board of Nassau County dismissing the complaint against the Respondent and reinstating the Respondent to his former position without diminution or loss in pay, benefits or other emoluments of his former position. DONE AND ENTERED this 4th day of October, 2001, 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 the Clerk of the Division of Administrative Hearings this 4th day of October, 2001. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Brian T. Hayes, Esquire Brian T. Hayes, P.A. 245 East Washington Street Monticello, Florida 32344 John L. Ruis, Ed.D Superintendent of Schools Nassau County School District 1201 Atlantic Avenue Fernandina Beach, Florida 32034 Honorable Charlie Crist Commission of Education The Capitol, Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue At issue is whether Jeffrey Alshin is subject to discipline for violation of Section 490.009(2)(k), Florida Statutes (1983), by committing an act upon a client which would constitute sexual battery or sexual misconduct as defined in Section 490.0111, Florida Statutes (1983). Sexual misconduct in the practice of mental health counseling is prohibited by Section 490.0111, Florida Statutes (1983); that statute states that sexual misconduct shall be defined by rule. According to the Administrative Complaint, Rule 21U-15.04, Florida Administrative Code, defines sexual misconduct. The Administrative Complaint also alleges a violation of Section 490.009(2)(s), Florida Statutes (1983), for failing to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance. The factual basis for these various grounds for discipline is alleged to have been engaging in sexual activity with a client during the period March, 1984, through July 1984, when a counselor-client relationship existed with the client.
Findings Of Fact The Respondent, Jeffrey R. Alshin, is a mental health counselor who has been licensed by the State of Florida during the times material to the allegations made in the Administrative Complaint. The client with whom Alshin is accused of sexual involvement, J.S., was referred to him by a Dr. Lemberg, who saw J.S. on March 1, 1984 (Tr. 24). J.S. telephoned Alshin's office and made an appointment to see him on Monday, March 5, 1984 (Tr. 24). On March 5, 1984, J.S. went to Alshin's office for a therapy session and met Alshin for the first time. She had another session with him on March 9, 1984 (Tr. 24-25). From March 5, 1984 a counselor-client relationship existed between Alshin and J.S. (Tr. 82). On the morning of Sunday, March 11, 1986, Alshin invited J.S. to his home for a barbecue (Tr. 26). After the barbecue, Alshin and J.S. went to Respondent's apartment and that evening they engaged in sexual intercourse (Tr. 27-28). Alshin engaged in sexual intercourse with his client on five other occasions between March and June, 1984 (Tr. 29). During the period in which Alshin and J.S. were sexually involved, Alshin was counseling J.S. (Tr. 28-29). Alshin was never married to J.S. Expert testimony submitted at the hearing establishes that for a mental health counselor to have a sexual relationship with a client is conduct which falls below the minimum standards of performance in professional activities for a mental health counselor when measured against prevailing peer performance (Tr. 80).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Secretary of the Department of Professional Regulation finding the Respondent guilty of a violation of Sections 490.009(2)(q) and (s), Florida Statutes (1983), and that his license as a mental health counselor be REVOKED. DONE AND ORDERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
