The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue Whether Respondent, Carrabba's Italian Grill, Inc., subjected Petitioners, Jasen Baker and Bernard Southwell, to a hostile work environment and retaliation in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Respondent operates a chain of casual Italian restaurants. Respondent has adopted a policy against discrimination and harassment. In addition to prohibiting harassment, the policy instructs employees whom to contact if they experience harassment. The policy is contained in an employee handbook that is distributed to all employees during the initial orientation process. During orientation, Respondent's manager reviews the employee handbook with the new employee, including the policy on sexual harassment. During the orientation process, Respondent also requires employees to view a video that explains that Respondent will not tolerate harassment. The video familiarizes the employees with the company's expectations regarding the reporting of harassment in the workplace. During the orientation process, the employees are required to sign an acknowledgment on the exterior of their employee folders indicating that they have received and read the policy against harassment. The critical sections of the policy are reprinted on the folders immediately above the signature lines. All of Respondent's restaurants are required to display a poster known as the "Carrabbamico Info" poster in the kitchen area. This poster reprints the harassment policy and provides employees with a list of names to call if they feel that they have been harassed. Respondent has implemented reasonable precautions to prevent harassment from occurring in its restaurants. In the Central Florida market, Respondent's restaurants are overseen by a joint venture partner named Dick Meyer. Meyer is responsible for hiring and firing the managers of the restaurants that he oversees. In March 2000, Lawton DePriest became the managing partner at Respondent's Palm Bay location. DePriest reported to Meyer. DePriest remained in that capacity until September 2003, when he became the managing partner of Respondent's restaurant located in Formosa Gardens. It was DePriest's management style to frequently yell at employees in order to motivate them. It is also possible that he had favorites on the staff of the Palm Bay restaurant. Baker was hired by Respondent's Palm Bay restaurant in January 2002. At the time that Baker began working for Respondent, he attended an orientation session conducted by DePriest. It was DePriest's practice during orientation to discuss harassment issues and instruct employees to come to him directly if they experience any problems with sexual harassment. If for some reason an employee is not comfortable with him, DePriest would encourage the employee to contact any other person listed on the poster. Baker was given a copy of Respondent's handbook, which contains the company's policy against harassment. On that same date, January 19, 2002, Baker signed his employee folder on the blank line under the harassment policy indicating that he had read and received the policy. Whether he reviewed the employee handbook further after that date is irrelevant. Baker "vividly remembers" that during his orientation, he watched the videotape that included instructions on what he should do if he felt harassed. However, during the hearing, Baker denied ever seeing the Carrabbamico Info poster. However, Baker admitted on cross-examination that during his deposition, he had acknowledged seeing the Carrabbamico Info poster posted in the store. During the deposition, Baker specifically remembered that there were business cards with contact information for Meyer and Cheri Ashe attached to the bottom of the poster. Despite Baker's attempt to deny seeing the poster, his earlier answers in deposition were more credible in view of his specific recollection of the attached business cards and the lack of any persuasive explanation for the discrepancy. After completing his orientation, Baker initially worked as a dishwasher. Later, he was shown how to do food preparation work. Before coming to work for Respondent, Baker had previously worked for a restaurant by the name of Golden Corral. During the time that he worked with Golden Corral, he became acquainted with a co-worker named Bernard Southwell. In the summer of 2002, Petitioners discussed the possibility of Southwell coming to work for Respondent. Baker spoke favorably of the restaurant and recommended that Southwell submit an application. At the time, Baker had worked for Respondent for six or seven months. Baker did not express to Southwell that he had observed or experienced any problems with unwelcome harassment. Southwell submitted an application and was hired by Respondent's Palm Bay restaurant in August 2002 as a dishwasher. At the time he began employment with Respondent, Southwell was living with a friend of his named Joe Corbett. At the time, Baker was living in a one-bedroom apartment with his girlfriend. Several weeks later, Baker's girlfriend decided to move out. According to Petitioners, she suggested to Southwell that he move into Baker's apartment to replace her. Around October 2002, Southwell moved out of the Corbett residence and moved in with Baker. A third employee named Chris Germana also moved into the residence around the same time. Because the apartment only had one bedroom, Germana slept on the couch. Petitioners slept in the bedroom. When employees at the restaurant learned of these arrangements, speculation began about whether the two men were homosexual. According to Petitioners, sometime after Southwell started to room with Baker, co-workers at the restaurant started referring to Petitioners by nicknames. The co-workers referred to Baker as "powder," "crack pipe," and "crack head." Baker knew that "powder" was a reference to a character from the movie "Powder" and that the name had nothing to do with his sexuality. The co-workers also referred to Petitioners as "butt buddies." Southwell testified that a male co-worker, Christopher Bouley, told him, "I know you guys are lovers." Bouley, Arnold Samuel and DePriest all used these nicknames on occasion to refer to both Petitioners, according to Baker. After several months, Southwell eventually went to DePriest and complained about the "powder," "crack pipe," and "butt buddies" nicknames. Southwell told DePriest that the nicknames were funny at first, but that they started getting old. DePriest then told Samuel and Bouley to stop using the nicknames. Thereafter, the use of the nicknames stopped. Southwell claimed that Bouley would gyrate his hips behind other employees as they were bending down. However, Petitioners both admitted that Bouley would do these hip motions to both male and female employees. During the hearing, Petitioners claimed that Bouley subjected them to unwelcome touching. Baker claimed that Bouley had touched his buttocks once. However, Baker acknowledged that when his deposition was taken prior to the final hearing, he did not mention that Bouley touched his buttocks. In fact, when asked during his deposition whether he had been sexually harassed, Baker testified that he had not and that he had only been verbally harassed. Furthermore, Baker made no mention of any physical touching in the Affidavit that he submitted to FCHR at the time he filed his charge of discrimination. Southwell never saw Bouley touch or grab Baker's buttocks. And despite their close relationship, Baker never told Southwell that Bouley had grabbed his buttocks. Accordingly, Baker's allegation that he was touched inappropriately by Bouley or any other of Respondent's employees is not credible. Southwell claimed that Bouley had touched his buttocks on two or three occasions and touched his nipples twice. Southwell also claimed that Bouley had touched his penis on one occasion. According to Southwell, he was bending down to pick up sauté pans when Bouley, who was supposedly standing behind him, reached between Southwell's legs from behind and clutched Southwell's genital area through his trousers. This incident supposedly occurred during the restaurant's hours of operation while customers were in the restaurant. The alleged grabbing supposedly took place in front of a stove that sat in full view of customers seated at the restaurant's bar. Bouley flatly denied ever touching Southwell's genitals or private area. In the Affidavit that Southwell submitted to FCHR at the time he filed his charge of discrimination, Southwell made no mention of Bouley touching Southwell's penis. At the time that he submitted this Affidavit, Southwell was represented by counsel. Southwell did not offer any convincing reason for the omission of any description of his genitals being grabbed. Accordingly, Southwell's allegation that Bouley touched Southwell's genitals is not credible. Although Petitioners testified that they spoke to DePriest on several occasions, they admit that they never spoke to any of the other individuals listed on the harassment poster to complain about sexual harassment. DePriest testified that the only complaint he ever received had to do with the nicknames and that he took prompt action to resolve this problem. Annually, Respondent submits an employee experience survey to its employees that is completed anonymously and forwarded to an outside company for analysis. After the survey is completed, employees participate in a small group feedback session to discuss the results of the survey. On March 11, 2003, DePriest held the feedback session for his store, which was attended by Petitioners. During the session, Southwell commented about the situation with the nicknames. He indicated that the situation was resolved when it was brought to DePriest's attention. This was the sole extent to which either employee complained of unwelcome behavior. Respondent was not on notice of any problems with regard to touching or more serious inappropriate behavior. On March 12, 2003, Petitioners' last day of work, Southwell approached DePriest to complain about scheduling for a special event at the convention center. Southwell stated that he and Baker had signed up to participate in this event. Southwell was scheduled for the event, but Baker was not. DePriest explained that he needed Baker to float, because there were not enough people scheduled to work at the restaurant that night. DePriest later talked to Baker, who indicated that he was not disappointed that he was not participating in the event. That conversation, however, was the last time that DePriest saw Baker. DePriest learned that Petitioners had left before the end of their shift, when the plates in the restaurant were getting low and the sauté pans were getting stacked up. DePriest asked about the whereabouts of Petitioners and learned that they were seen riding their bicycles away from the restaurant. DePriest could not contact them because they did not have a telephone. DePriest eventually terminated their employment for voluntarily walking off the job.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that: Dismisses the Petition for Relief filed by Petitioner, Jasen Baker, in DOAH Case No. 05-0623, FCHR No. 23-03891; and Dismisses the Petition for Relief filed by Petitioner, Bernard Southwell, DOAH Case No. 05-0632, FCHR No. 23-03892. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 10th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason M. Gordon, Esquire Gordon & Cornell 103 North Atlantic Avenue Cocoa Beach, Florida 32931 Kevin D. Johnson, Esquire Thompson, Sizemore & Gonzalez, P.A. 501 East Kennedy Boulevard, Suite 1400 Tampa, Florida 33602 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Sapa Precision Tubing Rockledge, LLC (Respondent), discriminated against Christopher Brian Edwards (Petitioner) on the basis of age.
Findings Of Fact Petitioner is over 40 years of age, and was employed by Respondent from 2009 until May 21, 2013. Prior to his termination, Petitioner received favorable work evaluations and demonstrated good work attendance. Respondent is a manufacturing company that makes aluminum tubing for commercial purposes. Safety in the work environment is critical to Respondent’s success. Part of Respondent’s safety regimen includes maintaining a drug-free workplace. To that end, Respondent retains an outside company, Edge Information Management, Inc. (Edge), to conduct random drug tests of Respondent’s employees. Respondent’s drug-free policy is set forth in its employee handbook that is provided to all employees. Petitioner received a copy of the handbook and knew or should have known of the company’s drug-free policy upon his employment. In order to screen Respondent’s employees, Edge creates a random matrix that assigns all employees a number. The computer program used by Edge then generates a random sampling of employees for the given test date. In this case, approximately one month before the test date, Edge randomly selected employees who were to be tested on May 14, 2013. Petitioner was named among the randomly selected employees. Edge is accredited by the Drug and Alcohol Testing Industry Association and is fully authorized to conduct drug screenings. Edge employee, Leonard Clarke, was fully trained in the process of collecting samples to assure conformance with all applicable testing standards. Prior to the test date, Petitioner attended a meeting with other employees and voiced concerns to Respondent regarding working conditions by “bringing up stuff that they were not comfortable with.” Although not part of his original claim of discrimination, Petitioner now maintains that his termination was also in retaliation for his comments during that meeting. On May 14, 2013, based upon the employees randomly selected by Edge, Respondent notified supervisors to send the employees to a conference room for drug testing. Clarke prepared the paperwork and waited for the 27 employees to report for the screening. No one at Respondent selected the employees to be screened, conducted the collection of samples, or tested the samples taken. Clarke was solely responsible for the drug testing. All of the employees were required to review the testing form, sign, and date it before returning it to Clarke. Each was given a lollypop stick with a sponge attached to one end. By placing the sponge in the mouth and collecting saliva, the sample can then be tested to issue a preliminary result for drugs. Clarke had a difficult time collecting a saliva sample from Petitioner. Eventually, on the second or third attempt Petitioner produced enough saliva to place the sponge in the vial to allow the test strip to render a result. The test strips are designed to react to substances such as marijuana, cocaine, or amphetamines. In Petitioner’s case, the test strip showed positive for drug metabolites and/or alcohol. After testing positive on the saliva test (the only employee who did), Clarke asked Petitioner to give a urine sample so that a complete drug analysis could be performed by the Edge lab. Petitioner consented to all testing procedures and the collection of samples on May 14, 2013. For the purpose of the urine sample, Petitioner was given a cup and asked to go into the adjacent bathroom to produce the sample. When Petitioner returned the cup to Clarke it was noted that the cold, clear liquid did not register a temperature. Based upon his training, Clarke suspected that Petitioner had not urinated into the cup and discarded the sample. Next, Clarke accompanied Petitioner while a second sample was collected for urinalysis. Clarke marked the sample, packaged it in accordance with all applicable standards, and sent it by FedEx to Edge’s lab. Petitioner’s testing went from “random” to “reasonable suspicion/cause” based upon his saliva test and behavior with Clarke. It appeared to Clarke that Petitioner attempted to evade the drug testing process. Based upon the preliminary test results, Petitioner was suspended from work. Petitioner knew he had tested positive for drugs and that his urine sample would be further evaluated. It is undisputed that Petitioner’s urine tested positive for cocaine. Prior to notifying Respondent of the test results, Edge notified Petitioner that the sample tested positive for cocaine and gave Petitioner an opportunity to contest or explain how the result might be erroneous. Petitioner did not contest the result and has not disputed the presence of drugs in his saliva and urine on May 14, 2013. On May 21, 2013, Edge sent Petitioner’s drug results to Respondent. At that time, Respondent decided to terminate Petitioner’s employment with the company, and Chapman notified Petitioner by telephone that he was terminated because he tested positive for cocaine. Respondent gave Petitioner an opportunity to contest the drug results, but he did not. At hearing, Petitioner did not contest the drug results. Of the persons tested with Petitioner, twenty were younger than he and six were older. Only Petitioner tested positive for drugs. In the last ten years, all employees at Respondent who have tested positive for drugs have been terminated. No one younger or older than Petitioner has been retained if they tested positive for drugs. Petitioner’s age did not impact Respondent’s decision to terminate his employment. None of Petitioner’s comments were considered in the termination of his employment. Petitioner did not raise retaliation with FCHR and has not established that Respondent retaliated against him because of comments he made during a company meeting. In short, Petitioner was terminated because he tested positive for cocaine. There was no competent, substantial evidence that persons younger than Petitioner were treated differently from Petitioner or were subject to dissimilar policies or practices. All of Respondent’s employees who tested positive for drugs have been terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015. COPIES FURNISHED: Christopher Brian Edwards 4605 Ocean Beach Boulevard Cocoa Beach, Florida 32931 Mary Susan Sacco, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida, and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.; § 1001.32, Fla. Stat. (2016). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a two-year probationary period, and required Respondent to submit to substance abuse treatment. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who was at work. Respondent’s calls were not answered by Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.” At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows: I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day. And she asked me for pain pills or if I had any, and I said no.[1/] Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication. Mr. Long then contacted the school board’s office of human resources to report what he had been told by Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.” Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.” During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/ At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit to drug testing pursuant to the school board’s drug-free workplace policy. Reasonable Suspicion Indicators Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows: Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy. Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting Abnormal or erratic behavior Evidence of possession, dispensation, or use of a prohibited substance Industrial accident requiring medical attention Physical altercation or assault Odors and/or Appearance Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess very flushed very pale Jerky eye movements Unfocused, blank stare Dilated or constricted pupils Dry mouth, frequent swallowing or wetting lips Bloodshot or watery eyes Behavior and Speech Slurred or incoherent speech Breathing difficulty or irregularity Loss of physical control, dizzy or fainting Unsteady walk, poor coordination Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude Irritable, moody, belligerent or aggressive demeanor Nausea or vomiting Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness Rambling, loud, fast, silly or repetitious speech Talkative, cursing, other inappropriate speech Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions Mr. Carter and Ms. Anderson each completed a checklist. None of the indicators listed above were checked by either Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4, 2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing. Morphine and Imitrex Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and] [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her 2016-2017 annual contract with the School Board. DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2017.
The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Did Respondent, Jennifer Abadie, R.R.T., violate sections 468.365(1)(q), 468.365(1)(x), 456.072(1)(v), or 456.063(1), Florida Statutes (2018),1/ by committing sexual misconduct?
Findings Of Fact Section 20.43 and chapters 456 and 468, Florida Statutes, charge the Board with regulating the practice of respiratory care in Florida. Ms. Abadie is a licensed registered respiratory therapist in Florida. Ms. Abadie worked for Comprehensive Healthcare of Clearwater (Comprehensive) from October 24, 2017, through February 4, 2018, at its Pinellas County, Florida, location. Comprehensive is a residential rehabilitation and nursing facility. Ms. Abadies’s 89-year-old father was a patient at Comprehensive from before she started working there until his death. He suffered from dementia. Ms. Abadie visited her father frequently, before and after her shifts and when she was not working. G.B. was a severely ill patient at Comprehensive trying to recover from multiple strokes. G.B. was only 56 years old. However, he had extensive medical conditions. They included hypertension, congestive heart failure, fibromyalgia, diabetes, blindness and end-stage renal (kidney) disease. G.B. received dialysis three times a week for his kidney disorder. He took dozens of medications daily. G.B. also had a tracheostomy. A tracheostomy is a tube that goes into the trachea to help people with impaired breathing breathe. The heavy treatment load weighed on G.B. psychologically and caused him anxiety and depression. Ms. Abadie provided respiratory therapy services to G.B. G.B. recognized Ms. Abadie from an earlier time when she worked at Florida Hospital where he had been a patient. He reminded her of that time and established a friendship with her. Over time, the friendship grew closer. As a result of their friendship and Ms. Abadie's compassion for G.B., Ms. Abadie and G.B. spoke regularly. When Ms. Abadie visited her father, she usually checked on G.B. He and Ms. Abadie talked about the range of subjects that acquaintances talk about including families, children, marital status, holiday plans, and day-to-day lives. They spoke regularly by telephone as well as in person. Although they spoke regularly, Ms. Abadie and G.B. did not always speak at length. Sometimes she just waved and poked her head in to say hello. At G.B.'s request, Ms. Abadie brought him items from outside the facility, such as toiletries and a blanket. G.B. grew very fond of Ms. Abadie and wanted her as his girlfriend and eventually his wife. Ms. Abadie did not encourage or reciprocate these feelings or intentions. Lisa Isabelle was G.B.'s only other visitor. G.B. was a friend of her husband. She had known G.B. for most of their lives. Ms. Isabelle rented G.B. a residence on her property. Ms. Isabelle described her relationship with G.B. as "love-hate." Ms. Isabelle held a durable power of attorney for G.B. His family lived out of town and decided it would be good for somebody local to hold the power of attorney. On Sunday, February 4, 2018, Ms. Abadie came to Comprehensive to visit her father. She wanted to watch the Eagles play in the Super Bowl with him. Their family is from Philadelphia. Ms. Abadie stopped at G.B.'s room first. Charity Forest, L.P.N., was on-duty that day. G.B. was one of her patients. Towards the end of the first of her two shifts, Ms. Forest noticed that the curtain by G.B.’s bed was pulled halfway around his bed, which was unusual. The door was open. Ms. Forest entered G.B.’s room and looked around the curtain. She saw G.B. and Ms. Abadie sitting on the bed, on top of the covers. The head of the bed was raised about 45 degrees to provide a backrest. G.B. was wearing long pajama pants but not wearing a shirt. Ms. Abadie was wearing jean shorts, a T-shirt, and Keds®. Ms. Abadie was resting her feet on her iPad® so she would not dirty the covers. G.B. and Ms. Abadie were not touching each other. They were talking, watching television, and looking at pictures on Ms. Abadie's telephone. The room was a two-bed room. There was a patient in the other bed. Ms. Forest thought that the two sitting on the bed was inappropriate and left in search of her supervisor. Ms. Forest could not locate her supervisor. But she met another L.P.N., Ruth Schneck. Ms. Forest told Ms. Schneck what she had observed. Ms. Schneck went to G.B.'s room. The door was open. Ms. Schneck briefly entered the room. G.B. and Ms. Abadie were still sitting on the bed. Ms. Schneck left immediately, closing the door behind her. She joined the search for the supervisor. Neither Ms. Schneck nor Ms. Forest could locate the supervisor. While looking for the supervisor, Ms. Forest and Ms. Schneck encountered Sean Flynn, L.P.N. They told him what they had seen. Mr. Flynn was a licensed practical nurse and a case manager at Comprehensive. He had come to the facility briefly that day in order to take care of some paperwork. After talking to Ms. Forest and Ms. Schneck, Mr. Flynn went to G.B.’s room and opened the door. Ms. Abadie and G.B. were sitting on the edge of the bed facing the door. Mr. Flynn asked them if anything was going on. They said no. Mr. Flynn left the room and called Nicole Lawlor, Comprehensive's Chief Executive Officer. Ms. Lawlor told Mr. Flynn to return to G.B.'s room, instruct Ms. Abadie to leave, and tell her that she would be suspended pending an investigation. He returned to G.B.'s room with Ms. Forest and Ms. Schneck. G.B. and Ms. Abadie were still sitting on the bed. Mr. Flynn asked Ms. Abadie to step outside. She did. G.B. soon followed in his wheelchair. Mr. Flynn told Ms. Abadie that she was suspended and had to leave. G.B. overheard this and became very upset and aggressive. He insisted that Ms. Abadie was his girlfriend and that he wanted her to stay. Ms. Abadie asked to visit her father before she left. Mr. Flynn agreed. Ms. Abadie visited her father for a couple of hours. Ms. Abadie also called Ms. Isabelle to tell her that Mr. Flynn asked her to leave and that G.B. was very upset. After Ms. Abadie's departure, G.B. became increasingly upset and loud. His behavior escalated to slamming doors and throwing objects. Comprehensive employees decided G.B. was a danger to himself and others and had him involuntarily committed under Florida's Baker Act at Mease Dunedin Hospital. On her way home, Ms. Abadie received a telephone call offering her full-time employment at Lakeland Regional Hospital. February 4, 2018, at 6:08 p.m., Ms. Abadie submitted her resignation from Comprehensive in an e-mail to Ms. Lawlor. Ms. Abadie's only patient/caregiver relationship with G.B. was through her employment with Comprehensive. As of 6:08 p.m. on February 4, 2018, G.B. was not a patient of Ms. Abadie. She no longer had a professional relationship with him. Ms. Lawlor suspended Ms. Abadie on February 4, 2018. She based her decision on the information that Ms. Forest, Ms. Schneck, and Mr. Flynn told her, not all of which is persuasively established or found as fact in this proceeding. Still, Ms. Lawlor's memorandum suspending Ms. Abadie reveals that the nature of G.B.'s relationship with Ms. Abadie and the events of February 4, 2018, were not sexual. Ms. Lawlor's Employee Memorandum suspending Ms. Abadie does not identify a state or institution rule violated in the part of the form calling for one. She wrote "Flagrant violation of code of conduct." The description in the "Nature of Infraction" section of the form reads, "Employee was found cuddling in bed with a resident during her time off." There is no mention of sex, breasts, genitalia, or sexual language. None of the varying and sometimes inconsistent accounts of the day mention touching or exposure of breasts, buttocks, or genitalia. None of the accounts describes or even alludes to sex acts or statements about sex. The only kiss reported is a kiss on the cheek that G.B. reportedly forced upon Ms. Abadie as she was leaving. The deposition testimony of the Board's "expert," offers many statements showing that what the Board complains of might be called "inappropriate" or a "boundary violation" but does not amount to sexual misconduct. He testified about the strain a patient expressing romantic feelings toward a therapist puts on the professional relationship. He says the professional should tell the patient that the statements are inappropriate. The witness says that if the patient starts expressing the romantic feelings by touching the therapist, the therapist must tell the patient that his behavior is inappropriate and begin recording the events for the therapist's protection so that "no inappropriate allegations are made later." (Jt. Ex. 3, p. 3). Asked his opinion about allegations that Ms. Abadie was laying on G.B.'s bed, the witness says the behavior "crossed a professional boundary" and that he was not aware of the "behavior being appropriate in any situation." (Jt. Ex. 3, p. 16). The witness acknowledged that a hug is not inherently sexual. (Jt. Ex. 3, pp. 24 & 30). In addition, the training and experience of the witness do not qualify him as someone whose opinion should be entitled to significant weight. Among other things, he has never written about, lectured about, or testified to an opinion about sexual misconduct. Had the deposition not been offered without objection, whether the testimony would have been admissible is a fair question. § 90.702, Fla. Stat. After February 4, 2018, Ms. Abadie attempted to continue her friendship with G.B. by telephone calls and visits. However, Comprehensive refused for several weeks, against G.B.'s wishes, to allow Ms. Abadie to visit G.B. and would only permit Ms. Abadie brief, supervised visits with her father. G.B. was very upset by Comprehensive's prohibition of visits from Ms. Abadie. He began refusing food and treatment, including medications and dialysis. G.B.'s condition deteriorated to the point that he was admitted to hospice care. At that point, on February 24, 2018, Comprehensive contacted Ms. Abadie and gave her permission to visit G.B and lifted restrictions on visiting her father. A February 27, 2018, e-mail from Shelly Wise, Director of Nursing, confirmed this and admitted that the Agency for Health Care Administration had advised that G.B.'s right as a resident to visitors trumped Comprehensive's concerns. Ms. Abadie resumed visiting her friend, G.B. On May 21, 2018, G.B. passed away. G.B. was a lonely, mortally ill man. He initiated a friendship with Ms. Abadie that she reciprocated. Ultimately, he developed unfounded feelings about her being his girlfriend and them having a future together. The clear and convincing evidence does not prove that the relationship was more than a friendship or that it was sexual in any way.
Conclusions For Petitioner: Mary A. Iglehart, Esquire Christina Arzillo Shideler, Esquire Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Department of Health, Board of Respiratory Care, dismiss the Administrative Complaint. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2019.
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
The Issue Is the Respondent unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of any mental or physical condition? If yes, what is the appropriate disciplinary response to that impediment?
Findings Of Fact The Petitioner, in accordance with Chapters 20, 455, and 458, Florida Statutes, regulates the practice of physician's assistants in Florida. The Respondent practices as a physician's assistant in Florida. His license number is PA002355. PRESENT EMPLOYMENT At present, the Respondent works as a physician's assistant for Michael Dulaney, M.D. Dr. Dulaney is a board- certified family practitioner. The Respondent has worked for Dr. Dulaney for approximately one year. Dr. Dulaney has been satisfied with the Respondent's work. Dr. Dulaney has had no reports of problems with the Respondent's conduct reported by patients or other office staff. In particular, Dr. Dulaney does not have any specific knowledge concerning complaints made about Respondent related to sexual misconduct from the period February, 1992 forward. At present, the Respondent's practice in Dr. Dulaney's office is limited to treatment of adults; however, Dr. Dulaney would not be opposed to having the Respondent treat minors and adults. Dr. Dulaney is aware of the reasons for the present restrictions on the Respondent's practice, limited to care of adults. These limits are as had been imposed by the Physicians Recovery Network (PRN) based upon the Respondent's mental health status. The controls that are in place by Dr. Dulaney to limit the Respondent's present practice to adults include an inquiry by office staff when an appointment is made by a patient as to the age of the patient and another check when the patient arrives for the appointment as to the patient's age. The Respondent is also required to check the patient's age before rendering care. The protocol followed by Dr. Dulaney in his practice is to the effect that no female patient is examined by a doctor or a physician's assistant without a second staff member being in attendance. The second staff member would be a female. Should the Respondent not be allowed to provide care to minors in the future, Dr. Dulaney would allow the Respondent to remain as a physician's assistant and treat adults only. HISTORY On or about June 18, 1992, following allegations regarding custodial sexual battery of his 14-year-old stepdaughter, K.B., the Respondent entered into a monitoring contract with the PRN. The Respondent had also sexually abused his six or seven-year-old daughter from his first marriage. The Respondent was sexually abused by male and female siblings as a child. Raymond Pomm, M.D. specializes in general psychiatry, as well as addiction psychiatry. Among other duties, Dr. Pomm is a staff psychiatrist for the PRN. While under the terms of the monitoring contract in connection with the State of Florida Department of Business and Professional Regulation's Impaired Practitioner's Program, Dr. Pomm consulted the Respondent's physician employers on occasion to determine the Respondent's conduct as a physician's assistant. Dr. Pomm never received a report from the employers that the Respondent was acting inappropriately. On these occasions, the employers would indicate that they were satisfied with the Respondent' s work. When the Respondent signed the monitoring contract with the PRN, he agreed not to see patients under 18 years of age; to have a supervising physician report to the PRN on a quarterly basis regarding his behavior. The Respondent's supervising physician was responsible to make sure that patient information forms were handed out to patients to allow the patients to give immediate feedback concerning their perception of the Respondent's behavior. The supervising physician was to review 10 percent of the Respondent's charts on a quarterly basis. The Respondent was to receive ongoing therapy from John Vallely, Ph.D., a psychologist. On December 28, 1993, Dr. Goetz, the Director of the PRN, wrote to the Secretary of the Department of Business and Professional Regulation to advise the Secretary that Dr. Goetz was convinced that the Respondent's impairment seriously effected the public health, safety and welfare. This was followed by action by the State of Florida, Department of Business and Professional Regulation, Board of Medicine, to bring the Administrative Complaint, under Case No. 93-07340, charging the Respondent with being unable to practice his profession as a physician's assistant with reasonable skill and safety to patients based upon his illness and mental status. The Administrative Complaint makes reference to the opinion of Dr. Vallely. The opinion of Dr. Vallely which promoted the complaint was that the Respondent carried an Axis II Diagnosis of Mixed Personality Disorder with Obsessive- Compulsive, Anti-Social and Paranoid Features, and that the Respondent would need long-term therapy. The Administrative Complaint makes reference to a recommendation by Dr. Vallely that the Respondent's practice be limited to patients 18 years of age and older. Dr. Vallely did not testify in this proceeding to render his opinion concerning the Respondent's fitness to practice. Testimony on this subject was presented by Barbara A. Stein, M.D., testifying for the Petitioner. She is board-certified in general psychiatry and forensic psychiatry. In opposition to that testimony, the Respondent presented the testimony of Keith R. D'Amato, Ph.D., who is a clinical and forensic psychologist, who treated the Respondent. The Respondent also presented the testimony of Gini Fort, M.A., in counseling psychology, who worked with Dr. D'Amato in treating the Respondent. The Administrative Complaint makes reference to findings by George Bernard, M.D., who examined the Respondent and diagnosed the Respondent as suffering from pedophilia, opposite sex, non-exclusive type. Dr. Bernard did not testify in this proceeding. The Administrative Complaint makes reference to a determination on July 8, 1993, when the Respondent was evaluated by Gene Abel, M.D., of the Behavioral Medicine Institute in Atlanta, Georgia, in which Dr. Abel recommended that the Respondent not be in a medical setting, where the Respondent had proximity to girls under 18 years of age, nor in proximity to his former victim, taken to mean the Respondent's stepdaughter, until the Respondent had further treatment. Dr. Abel did not testify in this proceeding. Finally, the Administrative Complaint makes reference to the reference by Dr. Vallely, on December 16, 1993, in which Dr. Vallely described the Respondent as "a highly dangerous sex offender with pedophilic desires and attractions". The Respondent was also seen by Michael J. Herkov, Ph.D. at the time the Respondent was seen by Dr. Bernard. Dr. Herkov is a psychologist. Dr. Herkov did not testify in this proceeding. The treatment and evaluations performed by Drs. Vallely, Bernard, Herkov and Abel were all in association with the monitoring performed by the PRN. Although the health care providers associated with the Respondent that have been mentioned in the prior paragraph did not testify in this proceeding, their insights assisted Drs. Stein and D'Amato and Ms. Fort in arriving at their opinions concerning the Respondent's condition. Consequently, it is to some advantage to describe the history of treatment and evaluation by those health care providers, notwithstanding the inability to rely upon their independent judgment in determining the Respondent's present ability to render care with reasonable skill and safety. The Respondent began seeing Dr. Vallely in June, 1992 and received treatment off and on until December, 1993. For the benefit of the PRN, Dr. Vallely indicated that the Respondent carried a diagnosis of pedophilia and mixed personality disorder with obsessive- compulsive, antisocial and paranoid features. Dr. Vallely tried to address these conditions. Other attempts were made by the PRN to assist the Respondent. On December 9, 1992, the Respondent saw Drs. Bernard and Herkov. They diagnosed the Respondent as having pedophilia, opposite sex, non-exclusive type. At that time, according to a report by these health care providers, there was no information indicating that the Respondent was being presently sexually inappropriate with patients or any indication that he would engage in that behavior in the future. The recommendation by Drs. Bernard and Herkov was that the Respondent continue to be restricted in seeing children under the age of 18, be they male or female, until such time as the Respondent's treating therapist felt that the restriction was no longer necessary. The Respondent was initially treated by Dr. Vallely through June 18, 1993, at which time, Dr. Vallely suspended the Respondent's care. At that juncture, Dr. Vallely expressed the view to the PRN that the Respondent was manipulating therapy in attempting to gain closer contact with his stepdaughter. At that time, the Respondent expressed the view to the PRN that he did not believe that he was being heard by Dr. Vallely and that Dr. Vallely was overreacting. The Respondent requested another therapist to resolve this conflict. The PRN recommended that another evaluation be performed by a professional. This led to an evaluation by Dr. Abel in Atlanta, Georgia. The evaluation by Dr. Abel took place on July 8, 1993. Dr. Abel is recognized as an expert in the treatment of child sexual abusers. Although Dr. Abel did not arrive at a formal diagnosis, he summarized his belief of the continuing existence of pedophilia on the Respondent's part and a concern about the Respondent's manifest symptoms of arousal in relation to minor females. That concern was addressed through a penile plethysmophgraphy performed on the Respondent, in which the Respondent evidenced arousal to young girls. In his conclusions, Dr. Abel recommended that the Respondent should not be allowed to treat girls under 18 years of age. The Respondent then returned to receive therapy from Dr. Vallely. The Respondent and Dr. Vallely continued to have conflict concerning the Respondent's relationship with his stepdaughter and the Respondent's intention to remarry his ex-wife. Eventually, the Respondent was expelled from the program administered by Dr. Vallely. This expulsion took place on December 16, 1993 and was followed by the correspondence of December 28, 1993 by Dr. Goetz recommending that the Department of Business and Professional Regulation find that the Respondent's condition seriously effected the public's health, safety and welfare. The Respondent was referred to Dr. D'Amato from the State Attorney's Office. This was in association with the case of State of Florida v. Stephen Allan Newbern, in the Circuit Court of Duval County, Florida, Case No. 92-3347CF CR-C, as agreed to by the Respondent's counsel. The day Dr. D'Amato first saw the Respondent was February 10, 1994. The case described was the case in which the Respondent was accused of custodial sexual battery directed to his stepdaughter, K.B. Following the Respondent's decision to remarry his ex-wife, the Respondent was arrested in association with the aforementioned Circuit Court case, in which he had previously been allowed probation to participate in the program conducted by Dr. Vallely. The reason for the Respondent's arrest was premised upon a report by Dr. Vallely concerning the Respondent's decision to remarry his ex-wife. The Circuit Court case was then disposed of on June 24, 1994, in which an order was entered by the court following the Respondent's plea of guilty to a lesser included offense in Count I, lewd and lascivious act. For that plea, the Respondent had his guilt withheld; the Respondent was placed on community control for a period of two years, followed by eight years probation; and the Respondent was ordered not to have contact with his stepdaughter, directly or indirectly, without consent from his counselor or the Community Control Officer. The Respondent was ordered to pay for his stepdaughter's counseling or treatment through a treatment facility or counselor to which the stepdaughter had been referred, as directed by the Community Control Officer. The Respondent was ordered to continue his psychosexual counseling through Dr. D'Amato, who had substituted for Dr. Vallely. In this connection, the Respondent, in February of 1992, had voluntarily hospitalized himself based upon panic attacks and depression. Subsequently, an investigation was conducted by the State of Florida, Department of Health and Rehabilitative Services and the INS of the Navy; and the Respondent was arrested and incarcerated for 21 days for sexually abusing his stepdaughter. As a consequence, he was referred to the KIDS Sexual Offender Program, in Jacksonville, Florida, and directed to receive treatment from Dr. Vallely. In March or April of 1992, the Respondent was advised by his Naval Preceptor, Dr. Carrierre, to refer himself to the PRN. The Respondent accepted that advice and took the referral in May, 1992 and signed a contract in June, 1992 to monitor his mental health status. The Navy found him guilty of the sex offense and allowed him to remain in the service on active duty until his retirement on October 31, 1992. During this time, he served as a physician's assistant but was limited in his practice to adults only. When the Respondent attempted to reunite with his ex-wife in February, 1993, Dr. Vallely suspended him from the KIDS Program. In June, 1994, the Respondent was accused of violating his probation associated with the case in which he was a participant in the KIDS Program. The allegation of violation of probation was in relation to the Respondent's decision to stay with his ex-wife and stepdaughter in January, 1994. The Respondent was not prosecuted for this violation because he agreed to enter Dr. D'Amato's sexual offender program. In turn, he entered a nolo contendere plea to lewd and lascivious act and had the order entered on June 24, 1994 setting the terms of continued probation. The Respondent received treatment from Dr. D'Amato and Ms. Fort for approximately two years. In his practice, Dr. D'Amato specializes in the treatment of sexual offenders and has treated 500-700 persons with those conditions. Of those persons, two to three percent have been referred for a jail sentence and another two to three percent have been terminated from the treatment program. To deal with the Respondent's pedophilia, Dr. D'Amato conducted an initial clinical interview. Dr. D'Amato performed a number of tests to gain an impression of the Respondent's condition, to include the Minnesota Multiphasic Personality Inventory, the Beck Depression Inventory, the Columbia Sexual Screening Questionnaire, the Jackson Incest Blame Questionnaire, the Wilson Sex Fantasy Questionnaire, the Sexual History Questionnaire, and the Sexual Interest Card Sort. Following the initial assessment, Dr. D'Amato entered the Respondent into a treatment program, which had four levels. Level I was designed to insure safety of the community by restricting movement and by insuring that the Respondent owned up to and took responsibility for the sexual offense that had been committed against his stepdaughter. Levels II and III were devoted to psycho-educational activities, where the Respondent was expected to learn to identify antecedents to the sexual misconduct that had been committed. Level IV was a relapse-prevention process to allow the Respondent to develop a comprehensive plan that could "offshoot" any problems, stresses or arousals that would lead the Respondent to re-offend in the future. During the first phase of the treatment received by the Respondent, an abuse letter was written, a meeting was held with the victim to confront the abuse, history of the abuse was taken, and an apology letter was written. During the second and third phases, the Respondent learned to identify stresses that may lead to problems and to develop empathy for the victim. The emphasis of Dr. D'Amato's program that he administered to the Respondent was cognitive in nature. The program was anticipated to last between two and five years, depending on the person receiving the therapy. Patients in the program are seen in group treatment and, in some instances, receive marital or family therapy individually. The Respondent had polygraphs administered to him to attempt to determine if there was ongoing sexual abuse and to determine if the types of fantasies that the Respondent was entertaining when he entered the treatment program were still in evidence. In treating the Respondent, Dr. D'Amato did not use behavioral therapy to any large extent. This choice was made because having the Respondent undergo polygraphs and looking at the Respondent's psychological assessments which were done over the years, led Dr. D'Amato to believe that the primary problem that the Respondent had was in distorting information. It was observed, through the polygraph examinations, that the Respondent was not showing deviant sexual arousal. Therefore, it was not deemed necessary to offer treatment to deal with that form of problem. It was deemed more important to deal with cognitive restructuring of the Respondent and his view of life and people and interpersonal relationships. The Respondent did receive some behavioral training in his treatment by Dr. D'Amato, referred to as covert desensitization and role playing. Dr. D'Amato believes that cognitive therapy is the best approach to treating pedophilia, non-exclusive type, which the Respondent evidenced. Non-exclusive pedophiles, as defined in DSM-IV, have age-appropriate relationships, whereas fixated pedophiles focus exclusively on children. The Respondent was last seen by Dr. D'Amato in March, 1996. At that time, Dr. D'Amato diagnosed the Respondent as having a mixed personality disorder, NOS., with slight depression, not of a clinical nature, that the Respondent still suffered from post-traumatic stress disorder and pedophilia, non-exclusive type in remission. Dr. D'Amato does not believe that the Respondent needs to undergo further treatment to address the Respondent's condition, in that the Respondent is not showing any active symptoms, has acted in a responsible manner in his work and life, and has integrated back into his family. To require therapy when it is not needed would cause the Respondent to be more resistant, and the Respondent would not grow from the experience, according to Dr. D'Amato. Dr. D'Amato believes that the Respondent has good relapse prevention skills and has shown that he is implementing those skills in his life. Dr. D'Amato relied upon the polygraph examinations to determine whether the cognitive therapy received by the Respondent was successful. In doing so, Dr. D'Amato recognizes that the polygraph measures physiological responses following the subject's answer to a question. Dr. D'Amato did not refer to the prior penile plethysmophgraphy testing to confirm the Respondent's status and did not administer that test. He sees the latter test as being a measurement of sexual response to pictures, which is less important to Dr. D'Amato than the question of whether the Respondent is having sexual fantasies or acting out in a sexually-inappropriate way, which Dr. D'Amato believes the polygraph examination would uncover. Dr. D'Amato has experienced 95 percent success in the treatment of sexual offenders. Nonetheless, he recognizes that this success does not establish that persons who are pedophiles, who have not been known to re-offend, are cured. Dr. D'Amato is not aware of any reports concerning misconduct by the Respondent in treating patients. Dr. D'Amato does not believe that the Respondent should have his practice restricted to adults only. Dr. D'Amato was impressed with the Respondent's ability to deal with stress in relation to a death within the Respondent's family, various legal problems associated with the Respondent's sexual abuse of his stepdaughter, his work load, and the re-unification of the Respondent's family, without committing further sexual abuse based upon the stress. Dr. D'Amato saw the experience which the Respondent had in re-unifying his family as being helpful to his treatment by giving the Respondent the opportunity to deal with the realities of those relationships and to reconstruct those relationships in a positive manner. Dr. D'Amato observed that the Respondent's religious convictions assisted the Respondent in his rehabilitation by sharing the experience with his family and providing a code of conduct to follow. Dr. D'Amato recognized that the Respondent's character structure would not change over time but believed that the Respondent would change his behavior based upon new strategies and coping lessons that he had learned in the treatment. Dr. D'Amato expressed the opinion that if the Petitioner automatically revoked or suspended the Respondent's license to practice as a physician's assistant, the Respondent would not come forward and seek treatment in the future if he experienced a problem, and the result would be more sexual abuse. Ms. Fort expressed the opinion that the Respondent was a low or no- risk candidate for recidivism. Further, she indicated that the Respondent had successfully handled stress related to his older son coming home and financial difficulties. Ms. Fort expressed the belief that given the Respondent's successful completion of therapy, the Respondent could be in close contact with children in private. In performing her evaluation of the Respondent, Dr. Stein spoke to Dr. D'Amato and Ms. Fort concerning the care they rendered to the Respondent. Dr. Stein saw the Respondent on referral from the Physicians Resource Network, formerly known as the Physicians Recovery Network. Dr. Stein examined the Respondent in February, 1996. Dr. Stein's evaluation included an interview with the Respondent and preparation of a history. Dr. Stein also had access to collateral information from other treatment professionals who had seen the Respondent. Dr. Stein contacted individuals who were familiar with the Respondent's professional and private life. Dr. Stein arranged for Flora Zaken- Greenberg, Ph.D., a clinical psychologist, to perform a clinical interview, record review, and psychological testing by use of a WAIS-R, Beck anxiety inventory, Beck depression inventory, MMPI-2, MCMI-III, and Roschach. Dr. Stein took all of these matters into account in preparing a report of her forensic psychiatric examination. That report was rendered on March 9, 1996. Dr. Stein, in her report, and at hearing, expressed the opinion that the Respondent suffers from pedophilia, non-exclusive type, DSM-IV 302.2, and personality disorder, not otherwise specified, which includes narcissistic, antisocial and dependent personality traits. Dr. Stein pointed out that pedophilia is a type of sexual deviant disorder, which lasts for at least six months, in which setting, the individual has strong urges, behaviors or fantasies of having sex with a prepubescent child, and this impairs the life of the pedophile. In a non-exclusive type of pedophilia, the individual may also have relationships with adults. Dr. Stein described the Respondent's personality disorder as being a circumstance in which the Respondent has difficulty viewing and interacting with the world. The Respondent sees the world through a distorted view, thinking in a distorted way, interacting in a distorted way, being impulsive and having a tendency to have mood problems from time to time. Those traits endure and impair him. That disorder does not necessarily mean that the Respondent could not work. In Dr. Stein's opinion, pedophilia cannot be cured and is a disease that has a very high relapse rate, notwithstanding that there are periods in which the pedophile does not have urges or behaviors or fantasies directed to prepubescent children. Dr. Stein holds the opinion that the Respondent will, given his condition of pedophilia, be at greater risk of sexually acting out inappropriately regardless of whether it is in the workplace or elsewhere. Dr. Stein expresses this opinion with the knowledge that the Respondent has learned a great deal from his sexual offender treatment and that the experience that he has had in participating in the treatment has lowered the risk for him to re- offend. Nonetheless, according to Dr. Stein, his psychological testing shows an underlying character structure that creates a potential for sexual deviance, impulsivity, antisocial acts, and impaired interpersonal relations, particularly so when under stress; and that set of circumstances has not changed overtime. Dr. Stein believes that the Respondent should have his practice as a physician's assistant restricted to adults only and the practice monitored. Dr. Stein believes that the monitoring should include biannual polygraph examinations, in which the following questions are asked: (1) have you had sexual feelings towards children under the age of 18 accompanied by your adult patients?; (2) have you concealed any relevant sexual history from your therapist?; (3) have you attempted to access those or other children under the age of 18?. Finally, Dr. Stein believes that the Respondent should participate in a relapse prevention group for the next 12 months and at least at quarterly intervals beyond that point for an indefinite period. She believes that this would assist the Respondent in relapse prevention, to build a repertoire to decrease his risk for re-offending and to protect society from a professional in his position of trust who has a disorder which cannot be cured. Dr. Stein believes that the additional 12-month therapy, followed by quarterly therapy for an indefinite period, is necessary to preserve a degree of continuity and to reinforce the skills achieved by the Respondent in addressing his condition and promotes the further recognition by the Respondent that he knows that he has to answer to people, and that there are external controls in a setting in which his internal controls are not as good as they need to be. The use of a polygraph on a biannual basis would be a means to aid in the process of exerting controls over the Respondent's conduct. Dr. Stein does not believe that it is necessary to revoke or suspend the Respondent's license completely to address his condition and protect the public. From the views held by Drs. Stein and D'Amato and Ms. Fort, it is clear and convincing that the Respondent has a mental condition which effects his practice as a physician's assistant and the ability to render care with reasonable skill and safety to his patients. According to the evidence, the Respondent has performed his practice in an acceptable manner when limited to treating adults only. Dr. D'Amato and Ms. Fort believe that the Respondent could practice as a physician's assistant in contact with children. Dr. Stein disagrees with that opinion. The experts also disagree concerning recidivism rates for pedophiles. Dr. D'Amato and Ms. Fort believe that the rate is low for their program. Dr. Stein does not generally hold that opinion. Given the seriousness of the Respondent's illness and the risk it presents to children, the lack of ability to cure his condition, and the possibility of relapse, however slight, there is a real concern about patient safety should the Respondent be allowed to practice as a physician's assistant treating children. To that end, Dr. Stein's opinion is more compelling when she urges restrictions on the Respondent's practice. Although Dr. D'Amato does not believe that a relapse prevention program is needed for the Respondent, if determined to be needed, he is persuaded that a program should only extend for six months. Having considered the views held by Drs. Stein and D'Amato, a further relapse prevention program of six months provided by Dr. D'Amato, together with quarterly therapy for an indefinite period beyond that point, with biannual polygraph tests of the sort recommended by Dr. Stein, is appropriate to insure that children, who are treated in the office where the Respondent practices, remain safe. No evidence was produced which would suggest that the Respondent should be completely denied the privilege to practice as a physician's assistant based upon concern that he would not proceed with reasonable skill and safety by reason of his mental illness. The restrictions that are discussed above adequately protect the public without depriving the Respondent of his livelihood.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is RECOMMENDED that a Final Order be entered finding the Respondent in violation of Section 458.331(1)(s), Florida Statutes, restricting his practice as a physician s assistant to adults only, requiring the Respondent to undergo an additional six months of relapse prevention therapy, followed by quarterly therapy sessions for an indefinite period and biannual polygraph examinations. DONE AND ENTERED this 27th day of November, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Terry D. Bork, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street1 Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Did Respondent, Winn-Dixie Corporation (Winn-Dixie), discriminate against Petitioners on account of their race or sex, or retaliate against Petitioners in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioners, Reginald Burden (Burden) and Donald Rockhold (Rockhold) were co-workers and Warehouse Supervisors for the night shift at Winn-Dixie's General Merchandise Distribution (GMD) facility on Edgewood Avenue in Jacksonville, Florida. At the time of their termination from Winn-Dixie, Rockhold had worked for Winn-Dixie for almost ten years and Burden for fourteen years. In March 2009, Rockhold's supervisor, Mark Murray (Murray) received an anonymous letter accusing Rockhold (a/k/a Rocco) of being unable to control his libido and attempting to "sleep with as many women under him as possible, married or single." Murray showed the letter to his immediate supervisor, Operations Manager Jayson Kielar (Kielar), who in turn showed it to his supervisor, Distribution Center Manager Robert Stewart (Stewart). Contrary to Winn-Dixie policy, the existence of the letter accusing an employee of sexual harassment was not immediately brought to the attention of the Winn-Dixie Human Resources (HR) office. According to Kielar, Stewart did not inform HR because he was afraid someone would be fired. Instead, it was decided the matter would be handled internally at the GMD. Stewart and Kielar informally questioned Rockhold, who denied all of the allegations in the letter. Kielar questioned Stewart's decision not to involve HR, but because Stewart was his boss, he capitulated. In December 2009, Winn-Dixie received a second, similar anonymous letter complaining about rampant sexual harassment in the GMD. This time, however, Peter Lynch, Winn-Dixie's CEO also received a copy. Entitled "Gross Abuse of Power Winn-Dixie Sex Camp," the letter contained lurid accusations of sexual misconduct and named Rockhold as the worst abuser. The letter also accused several other male supervisors, namely Burden (a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of sexually harassing female employees. Winn-Dixie immediately launched an investigation to determine whether the allegations were accurate. Robert Scott (an African-American male), Tanya Kornegay (an African-American female), and Stacy Brink (a white female) interviewed numerous GMD employees and obtained written witness statements. Rockhold was interviewed twice (January 18 and 25, 2010) and Burden once (January 18, 2010). During the course of the investigation, it became evident that many of the more sordid accusations of overt sexual misconduct in the letters were false or unsubstantiated. However, the investigation did reveal violations by Petitioners of Winn-Dixie's "Written Company Policy Statement on Harassment, Including Sexual and Racial Harassment." That Statement provides in relevant part: The company will not tolerate any harassment that degrades or shows hostility towards an individual because of race, color religion, sex, national origin, age or disability, including, but not limited to slurs, jokes, verbal abuse, stereotyping, threats, intimidation, hostile acts, or denigrating or hostile written or graphic material circulated or posted in the Company premises. Anyone who violates these guidelines will be subject to termination. * * * 3. Management at all levels is responsible for reporting and taking corrective action to prevent harassment in the work place. * * * The following conduct, especially by managers, can be as serious (or even more serious) than harassment itself: Ignoring or concealing harassment, or treating it as a joke. Failing to report known harassment. Retaliating against associates reporting or complaining of harassment. Being dishonest or refusing to cooperate with a harassment investigation. With respect to Rockhold, the investigation revealed that Rockhold had heard racial slurs and racially inappropriate remarks among employees but failed to take any disciplinary action or report the harassment to HR. One employee complained that Rockhold observed African-American and white employees using the words "nigger" and "cracker" in the workplace. In addition, another employee complained that Rockhold ignored a co-worker saying, "If you come back in Middleburg, we'll show you how we used to do them black boys back in the days." At hearing, Rockhold acknowledged that he heard GMD employees calling each other "nigger" or "cracker." He stated that he "called them out on it." He explained his failure to take any formal disciplinary action by stating, "It wasn't malicious. It was the n-word between black guys being thrown back and forth as a nickname." According to Rockhold, he didn't think it was inflammatory in that context and was merely their vernacular. The investigation also revealed allegations from several employees that Burden made inappropriate sexual comments toward female employees. These included witness statements from John Mason, Tammy Underwood, Amber Brown and Frank Butler. Burden was reported as saying one female employee had "big titties," and telling another female employee that she looked good in her jeans, that Burden could "handle" her, and when was she going to let him be the one for her, and that she didn't need to mess with the young guys because he (Burden) could please her better in the bedroom. One GMD employee testified at hearing that he was present when Burden told a group of employees that he thought a particular female employee had "nice tits." Petitioners knew Winn-Dixie did not tolerate sexual or racial harassment in the workplace, and they were tasked with making sure the environment was not one where employees felt it would be tolerated. Both Petitioners received sexual and racial harassment training as part of their leadership training. Winn-Dixie's employment policies emphasize the importance of supervisors' roles as leaders and the importance of not giving the impression to employees that it is acceptable to make inappropriate jokes in the workplace. Moreover, a supervisor has a duty to act when observing harassing behavior in the workplace. The failure to act communicates to subordinates the company condones or tolerates the behavior. As a result of the investigation, Winn-Dixie decided to terminate Petitioners' employment. Several members of Winn- Dixie's management (male, female, white and African-American) were involved in making this decision. One of those involved in making the decision testified that the group never discussed or considered Petitioners' gender in their decision to terminate Petitioners' employment. The termination notices given to Petitioners are identical, and read as follows: "As the result of an anonymous letter received in early January 2010, addressed to Peter Lynch, a thorough investigation was conducted relative to alleged allegations of inappropriate comments by Associates regarding sexual and racial comments in the presence of management in the Jax-GMD Warehouse. The investigation clearly identifies you as a willing participant or lack of effective execution of the proper protocol established through management training (Duty to Act) to address inappropriate comments from Associates as required by Winn-Dixie's Policy in your Supervisor position." At hearing, Rockhold described his job as "being his life, other than his children." He also testified that being falsely accused of sexual misconduct or ignoring employees who engaged in sexual or racial misconduct, then being fired, ruined his life. He "poured his heart and soul into the company" and testified that no one had ever come to him, as a supervisor, with any kind of a problem with regard to sexual or racial misconduct. Burden testified that he believed that Robert Scott (African-American male) was the one that made the decision to terminate him, not Jayson Kielar (white male) since Kielar had written a letter of recommendation for Burden after he was terminated. Burden testified that he believed he was terminated because he was a man accused of sexual harassment and that somebody had to take the responsibility for the false allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petitions for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2013.
The Issue Whether the Petitioner has presented clear and convincing evidence that he is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are developmentally disabled, under Section 397.451, Florida Statutes (1995).
Findings Of Fact Petitioner seeks an exemption for employment in a position of special trust for which a security background check is required under Florida law. In 1977, Petitioner pled nolo contendere to a misdemeanor sexual assault for fondling an adolescent. He was sentenced to probation. Petitioner was 22 years old at the time. In 1986, Petitioner pled guilty to a felony sexual assault of a 15 year old boy, in the state of New Hampshire. Petitioner was 31 years old at the time. After serving 2 years of a 3~ to 7 year sentence, Petitioner was released from prison in 1989. Petitioner successfully completed parole and was released in March, 1993. Petitioner has not been arrested for any crime since 1986. Petitioner stated he received therapy in prison in a sexual offender program. However, Petitioner presented no evidence of attending a sexual offender program while in prison or afterwards, nor did he submit records of his treatment while in prison. Petitioner explained the circumstances surrounding the 1986 conviction for sexual assault. While working as an athletic trainer, Petitioner took advantage of a situation while he was performing massage therapy on a fifteen year old boy, he fondled and performed oral sex on the boy. Petitioner stated the victim consented, as much as a 15 year old can consent. Petitioner did not explain the circumstances surrounding the 1977 incident. Petitioner did not express remorse for any sexual misconduct that he committed other than the 1986 offense. He addressed his 1977 charge only to say that had he received more than a slap on the wrist, the 1986 sexual assault might not have occurred. Petitioner stated he was sexually abused as a child. In 1993, Petitioner received a Masters Degree in social work from Salem State College in Massachusetts. Petitioner explained he studied for his masters in social work because he would no longer be eligible for licensure as an athletic trainer. Petitioner stated it would not be appropriate for him to put his hands on adults or children, which is necessary as an athletic trainer. He feels it wouldn't be appropriate for him to be in a position where he could possibly be aroused by an adult, an adolescent or a child. Although Petitioner states he has never been aroused or interested in anyone other than what would be considered a mature adolescent or an adult. Petitioner is licensed as an independent clinical social worker in the Commonwealth of Massachusetts. In 1994, Petitioner moved to Florida to work for the Indian River Memorial Hospital in Vero Beach in the psychiatric unit of the Center for Emotional and Behavioral Health. Petitioner has been denied a license as a clinical social worker in Florida based on his history of sexual misconduct. As a result of his denial of a license, Petitioner must perform his duties under the supervision of another licensed clinical social worker. Working under someone else's supervision means he may continue to work with clients in group or individual therapy. Kathy Palezuelos, a licensed clinical social worker, has known Petitioner for two and a half years. They worked together at the Center for Emotional and Behavioral Health. She was qualified as an expert in the area of clinical social work. Ms. Palezuelos performed a mental health status examination on Petitioner on May 2, 1996. She discussed his homosexuality and the sexual offense at the time she did the mental status exam. Ms. Palezuelos described herself as more a friend than a colleague. They only worked together about six months. She was sometimes present while he did therapy if they were doing group therapy. He trained her when she first came on the job. Petitioner did not inform her of his past criminal history while they worked together. At the Center for Emotional and Behavioral Health supervision was structured loosely where the therapists would give each other feedback after presenting cases. Sara Billings is a licensed clinical social worker. She was qualified as an expert in the area of clinical social work. Ms. Billings met Petitioner in January, 1994, at the Center for Emotional and Behavioral Health. She has supervised Petitioner since that time. Ms. Billings worked with Petitioner for two years before he disclosed his criminal history involving sexual assaults. During those two years Petitioner did therapy on children as well as adults. In January, 1995, she asked Petitioner to join her in her private practice in Melbourne, Florida. Ms. Billings is not present while Petitioner does therapy. She did not feel the children being treated and their parents should be told about Petitioner's criminal history. A child is anyone under the age of 18. The Diagnostic and Statistical Manual, Fourth Edition (DSM IV) is an accepted textbook for practicing psychologists. DSM IV states that guidelines for pedophilia are an age difference of 5 plus years between the offender and the victim. Ms. Billings admitted Petitioner meets the criteria for a pedophile as set forth in the DSM IV. However, she does not believe he is a pedophile because the child Respondent molested was as physically mature as an adult. She bases this opinion on what Petitioner has related to her about his case. Dr. Deborah Day is a licensed clinical psychologist, licensed mental health counselor and a certified family mediator. Her specialty is clinical and forensic psychology specializing in physical and sexual abuse. She was the consultant for the Child Protection Team and the Sexual Abuse Treatment Program. She is presently on the Board of the Sexual Abuse Treatment Program. She has dealt with approximately 1000 cases involving sexual abuse. She was qualified as an expert in the area of sex offenders and sexual abuse. Dr. Day reviewed a file provided by the Respondent that included the mental health status exam and copies of the Petitioner's criminal records. The issues presented in the file are issues she commonly deals with in her practice. Petitioner has not provided sufficient information to make an assessment on whether he is a risk to re-offend. The Mental Status Exam only addresses current levels of functioning. Full responsibility in the course of treatment for a sex offender means getting past the defense mechanisms offenders use initially in treatment in order to keep their ego safe. Full responsibility for a person's conduct is saying the child or adolescent had nothing to do the adult's conduct. The offenders' responsibility was solely to say "no". Most homosexuals are not pedophiles. Homosexuals generally either withhold their sexuality or they hide it from the general public. A sex offender with a history of being molested as a child is common. A convicted sexual offender who has applied to work with children in a therapeutic relationship is a risk to the offender and the child. It sets up a trusting relationship where boundaries have to be closely monitored. Petitioner's statement that he was confused about his homosexuality in 1986, when he sexually assaulted the 15-year old boy, is minimization, rationalization and demonstrates a superficial understanding of what really happened. It is denial for a convicted sexual offender to say he is not aroused by children. There has to be sexual attraction if you sexually abuse a child. Petitioner will be able to continue to work as a social worker and a therapist as long as his clients are adults. Whether or not he discloses his past to adult patients is an ethical matter and not one for the present case. Petitioner has not testified with candor as to his past conduct. Moreover, Petitioner made conflicting statements and rationalizations with respect to the circumstances surrounding the crimes. He has not produced treatment records to support his claim that he received treatment in a sexual offender program. Petitioner has not demonstrated by clear and convincing evidence that he is rehabilitated and will not present a danger to children or disabled adults.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for an exemption be DENIED. DONE AND ENTERED this 11th day of March, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997. COPIES FURNISHED: Philip S. Paul 537 Wilson Avenue Satellite Beach, Florida 32937 Carmen Muniz Sierra, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
