The Issue The issues in this case are whether Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes (2008),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Rodriguez was certified as a correctional officer in the State of Florida by the Commission on May 18, 2004, and was issued Correctional Certification No. 240475. On or about February 10, 2009, officers from the Kissimmee Police Department and St. Cloud Police Department participated in an undercover police operation geared to targeting individuals that intend to commit crimes involving narcotics or prostitution. They created a false advertisement for prostitution services on the website, Craigslist. The advertisement consisted of photographs and an undercover phone number to contact for sexual services. The advertisement did not indicate that it was an undercover operation. On or about that same date, Mr. Rodriguez placed a phone call using the same number on the advertisement. At the time Mr. Rodriguez placed the call, he was unaware that the advertisement was part of an undercover operation. During the phone conversation, Mr. Rodriguez communicated with Detective Takeya Close (Detective Close), an undercover agent who posed as a prostitute. Detective Close did not identify herself to Mr. Rodriguez as an undercover agent. Mr. Rodriguez communicated to Detective Close that he desired sexual services from her in exchange for money. Detective Close informed Mr. Rodriguez that the price for sexual services ranged from 50 to 80 dollars. A “quickie” service consisted of 15 minutes or less of sexual activity and cost 50 dollars. A “full service” consisted of a half-hour of sexual activity and cost 80 dollars. Mr. Rodriguez told Detective Close that he wanted a “full service” and was willing to pay her either price for her sexual services. Detective Close then provided Mr. Rodriguez a meeting location, a residential house at 4903 Newton Court in St. Cloud, Florida. Law enforcement used the residential house as part of the undercover operation. They agreed to meet at 8:45 p.m. Mr. Rodriguez arrived at the agreed time at the St. Cloud residential house that was part of the undercover operation. Detective Close, posed as a prostitute, greeted Mr. Rodriguez at the front door. Once Mr. Rodriguez entered the house, law enforcement officers arrested and detained him. During a search of Mr. Rodriguez incident to his arrest, law enforcement officers discovered his cellular phone, which contained the undercover phone number in the call history log, and 50 dollars cash. Detective Close’s credible testimony was that, on or about February 10, 2009, Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and arrived at the St. Cloud undercover residential house attempting to engage in prostitution. Mr. Rodriguez’s testimony that the purpose of his communication with Detective Close and his arrival at the St. Cloud residential house was to receive a massage was not credible. His cellular phone showed that he had called the undercover number and that he went to the St. Cloud undercover house at the agreed time. On or about April 12, 2009, Mr. Rodriguez was driving a white SUV. Devon Littlejohn (Ms. Littlejohn), a prostitute, was standing on the corner of Wakulla and Orange Blossom Trail, an area known for prostitution activity. When Mr. Rodriguez drove past where Ms. Littlejohn was standing, Ms. Littlejohn waived at him. Mr. Rodriguez made a U-turn and drove up to Ms. Littlejohn. Ms. Littlejohn approached Mr. Rodriguez while he was in his vehicle and engaged in conversation with him. Ms. Littlejohn solicited sexual services to Mr. Rodriguez by asking him if he wanted a “date.” Mr. Rodriguez answered affirmatively and then asked Ms. Littlejohn if she had a room. Ms. Littlejohn answered yes. Mr. Rodriguez then asked Ms. Littlejohn about the price for her sexual services, and she informed him that “full service” costs 80 dollars. Mr. Rodriguez agreed to pay Ms. Littlejohn 80 dollars in exchange for her sexual services. Ms. Littlejohn entered the passenger side of Mr. Rodriguez’s vehicle. Mr. Rodriguez then drove off with Ms. Littlejohn inside his vehicle. On April 12, 2009, Law Enforcement Sheriff Deputy Scott Bearns (Deputy Bearns) of the Orange County Sheriff’s Office was patrolling the Orange Blossom Trail area when he drove pass Mr. Rodriguez’s vehicle. Deputy Bearns conducted a traffic stop on Mr. Rodriguez’s vehicle for having an illegal window tint. Mr. Rodriguez pulled his vehicle over at a parking lot across the street from the place where Ms. Littlejohn was originally standing. Deputy Bearns recognized Ms. Littlejohn as a prostitute in the local area and observed her and Mr. Rodriguez in the vehicle. Mr. Rodriguez informed Deputy Bearns that he worked as a correctional officer. Deputy Bearns then escorted Ms. Littlejohn outside of Mr. Rodriguez’s vehicle and Mirandized her. Ms. Littlejohn revealed to Deputy Bearns that Mr. Rodriguez had agreed for her to perform sexual services in exchange for 80 dollars. Ms. Littlejohn provided Deputy Bearns a written statement to that effect. Deputy Bearns arrested Mr. Rodriguez for assignation to commit prostitution. Ms. Littlejohn was not arrested. Incident to the arrest, another deputy conducted a search of Mr. Rodriguez’s vehicle and discovered a total of 102 dollars cash. Ms. Littlejohn’s credible testimony was that Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and allowed her to enter his vehicle in an attempt to engage in prostitution. Mr. Rodriguez’s testimony that Ms. Littlejohn jumped in his vehicle without his consent and was hanging out of the vehicle with the door open was not credible.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Jose R. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b) and revoking his certification. DONE AND ENTERED this 21st day of June, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 21st day of June, 2011.
The Issue The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.” The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances, including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to control, and that when business turns down, they are the most obvious place to cut expenses. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses. Mr. Schmidt also laid off service advisors and two lube technicians. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.” Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any more money than his current detailers were receiving. Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him. Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically, that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/ Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a rational business decision necessitated by a severe decline in sales revenue. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.
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 finding that Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 13th day of September, 2010.
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2014).1/
Findings Of Fact Based on the competent evidence presented at hearing, the following findings of fact are made: Respondent is the state agency which supports persons with autism, intellectual disability, cerebral palsy, Down syndrome, Prader-Willi syndrome, spina bifida, and similar developmental disabilities. Respondent contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. Alliance Community and Employment Services (Alliance) was under contract with the Agency. Persons employed at Alliance in positions of trust were required to complete level 2 background screening. On June 5, 2014, Petitioner was given a background screen as a result of his employment with Alliance, where he was beginning work as an employment consultant. In response to inquiries concerning his arrest on June 5, 1992, in Broward County, Florida, for possession of cocaine, Petitioner stated: I was stopped by the police for a rolling stop violation at a stop sign. The officer searched my car and found some drug paraphernalia. I was charged with a misdemeanor. After further testing of the paraphernalia, the charge was upgraded to possession of cocaine. This happened in 07/1992, twenty-two years ago. Petitioner testified at hearing that he did not plead “nolo contendere” to the charge of possession of cocaine, but only to possession of drug paraphernalia. This testimony is rejected as not credible, however. The allegations in the information that was before the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County clearly indicate not only the misdemeanor charge of possession of drug paraphernalia in violation of section 893.147(1), Florida Statutes, but also possession of cocaine, contrary to section 893.03(2)(a)4. The information is endorsed with the note that Petitioner “pleaded nolo open court.” Court documents similarly indicate that adjudication was withheld on both counts on September 11, 1992. The Court Status form also shows that at arraignment, Petitioner pled nolo contendere to Count I, possession of cocaine, as well as Count II, possession of drug paraphernalia. Finally, the Order of Probation, also dated September 11, 1992, and signed by the Circuit Court Judge shows a plea of nolo contendere to both counts, and this document was also signed by Petitioner. Petitioner pled nolo contendere to the felony offense of possession of the controlled substance of cocaine on September 11, 1992. Petitioner stated: “The status is all clear with the court system. Everything they asked me to do, I did.” There was no evidence at hearing contrary to this assertion. A letter dated October 16, 2014, from the Florida Department of Corrections indicates that based upon computer information, Petitioner completed his probation on August 26, 1994. Many more than three years have elapsed since Petitioner completed or was lawfully released from confinement, supervision, or non- monetary condition imposed for his disqualifying felony offense. In response to inquiries concerning an arrest for battery on November 18, 2011, Petitioner stated: My wife and I had an argument that started in the house and ended outside in front of the neighbors. The police were called and I was arrested. This response only indicated there was an “argument” and did not explain or describe any battery. In response to a question about the degree of harm to any victim, he stated that “there was no harm at all.” A letter dated June 8, 2012, was sent from the Agency for Health Care Administration to Petitioner informing him that Petitioner was granted an exemption from disqualification from employment in a position of trust. Although the letter was not sent until June 8, 2012, it did not take into account Petitioner’s arrest for battery, because the letter was based upon background screening completed on May 7, 2011. Ms. Evelyn Alvarez is the regional operations manager for the Southern Region in the Agency, who has been employed with the Agency for 11 years and with the State of Florida for 26 years. She testified that in her review of Petitioner’s request for exemption, she concluded that Petitioner had misrepresented the facts of the November 2011 battery. She concluded that there were indications of substance abuse and injury to his wife. In his request for exemption, Petitioner admitted that “I used to go drinking with the fellows quite often. I don’t do that as often as I used to.” With regard to drug and alcohol involvement, Petitioner answered: None Drinking--age 15 Marij.--age 15 Cocaine--age 33/2005 stopped have a drink occasionally socially holidays Petitioner’s wife, R.W., did not testify as to the specific events surrounding Petitioner’s November 18, 2011, arrest. When testifying generally about the incident, she stated that Petitioner “lost it,” that she does not “condone abuse,” and that “we got through it” and have “moved on.” She testified that nothing like it had happened before and nothing has happened since. A “Reporting Officer Narrative” describing those events indicated that the arresting officer, “observed and photographed [R.W.’s] injuries which included a large scratch on her right eye and dark red marks on her forehead.”2/ This seems directly contrary to Petitioner’s statement that there was “no harm at all” caused by the incident. The officer’s observations are credited. At hearing, Petitioner testified only that the events of November 18th were “one incident” that “got out of hand.” Documents submitted by Petitioner to Respondent in support of his request for exemption included his bachelor’s degree in business administration from 1983, a Certificate of Completion for the 2011 OSHA Bloodborne Pathogens Quiz, a Certificate of Completion of an Interview Workshop in 2014, a Certificate of Completion of the Professional Placement Network in 2014, a Certificate of Completion of a Resume Workshop in 2014, a Certificate of Successful Completion of Best Practices in Supported Employment in 2014, and a Certificate of Completion of a Social Networking Workshop in 2014. He also submitted a Letter of Recommendation. Passage of time is a factor to be considered in determining rehabilitation, and the disqualifying offense was many years ago. Petitioner’s history since that offense is largely unremarkable, except for the November 2011 incident resulting in his arrest for battery. It is troubling that Petitioner did not acknowledge that a battery took place or testify as to exactly what occurred in this fairly recent incident. He did not address the role, if any, that use of alcohol or other drugs might have played in this incident, or throughout his life. It is found that in stating that the November 2011 incident did not cause any harm at all, Petitioner misrepresented the facts. It is also difficult to understand Petitioner’s failure to acknowledge that he pleaded guilty to both possession of cocaine and paraphernalia. While Petitioner presented some evidence of rehabilitation, that evidence did not clearly and convincingly show that he is rehabilitated. Petitioner failed to prove that he is rehabilitated and that he will not present a danger if he is exempted from his disqualification from employment in a position of trust.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for exemption from disqualification. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 4th day of September, 2015.
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992, as amended, the Act or Chapter 760, Florida Statutes.
Findings Of Fact The Palm Beach County Sheriff's Office is a law enforcement agency that employs roughly 3,400 individuals, of whom approximately 1,200 are sworn law enforcement officers and 700 are sworn corrections officers. The remaining employees are civilian or non-sworn. Murphy was hired as a deputy sheriff by PBSO on October 26, 1992. He was continuously employed in that capacity until his termination on October 11, 2002. For portions of the time he worked for PBSO, Murphy also was employed at a Home Depot store and in his father's towing business. Murphy’s career at PBSO was the fulfillment of a life dream, one for which he had worked extraordinarily hard. Murphy's father worked in law enforcement, and instilled within his only son a dream "to serve and protect." Despite his family background, Murphy was not an obvious candidate for a career in police work. Murphy was a marginal student all his life. He failed second grade, and passing any academic subject was a struggle. Yet, he persevered, determined to realize his dream of following his father's footsteps. Murphy worked long hours on schoolwork, sports, and in the family towing business. He was able to attain a high school diploma by applying himself diligently to his academics and seeking out extra help. With constant practice and repetition of his class work, Murphy was able to master material well enough to pass necessary courses, but he was not good at transferring knowledge and information to other settings. Despite his weak academic history, or perhaps because of the perseverance it showed, Florida State University awarded Murphy a partial football scholarship. In pursuit of his life dream, Murphy chose to major in criminal justice. Again, he experienced academic difficulty. As he had done in grammar school and high school, Murphy sought out extra tutelage and put in whatever hours it took to complete his degree. In due course, Murphy applied for and obtained a job at PBSO, having fulfilled all its employment criteria, including being licensed to carry a firearm and having passed a psychological evaluation. Murphy's first assignment was road patrol. Road patrol in most law enforcement agencies, particularly those in large urban areas such as Palm Beach County, is an entry-level position, and a baptism by fire. Every traffic stop is potentially life threatening. Road patrol officers may be called upon on a moment's notice to provide back up to fellow officers who are under fire. Virtually every interaction with the public calls for grace and good judgment under stressful circumstances. The most ordinary of days on road patrol result in a need to generate reports. There are, as Murphy noted, "hundreds of formulas" which deputies must understand so that they can properly document traffic accidents. A working knowledge of Florida Statutes, criminal and civil procedure, and related court rules, is also required. It soon became apparent that Murphy was unsuited to road patrol. With its incessant demands upon him to quickly access and apply academic training to the infinite variables of street policing, road duty revealed that Murphy was unable to translate his classroom learning to the demands of the job. His supervisors were therefore obliged to spend a disproportionate share of time addressing situations created by Murphy's sub-par performance. After two years, Murphy was assigned to Palm Beach International Airport (PBIA). Murphy found this position more congenial. Freed of the stress of road patrol and its unceasing paperwork demands, Murphy’s weak academic skills were no longer a constant irritant to his supervisors. Nonetheless, Murphy's annual job evaluations make clear that in either assignment, his job performance was marginal. Murphy maintained excellent physical fitness and a professional appearance at all times, but was often rated borderline in areas involving judgment, ability to withstand pressure, and relations with colleagues and the public. As far back as his 1993-94 evaluation, Murphy's supervisors cited concerns regarding his common sense, and his ability to make sound decisions and to exercise good judgment. Murphy found it difficult to stay awake when assigned to the midnight shift, a problem that was easily remedied with a schedule change. Much more problematic was his difficulty in quickly and effectively writing reports. Murphy's deficiencies in report writing were noted on at least three annual evaluations, and PBSO made a good faith effort to assist Murphy in remediating his deficiency by providing him extra report writing training. Murphy places substantial significance upon an incident which he states occurred in April 1995 when he was on routine road patrol and was one of several deputies asked to respond to a domestic disturbance call. The incident involved unholstering his gun. Based upon Murphy's description of the incident and resulting symptoms years after the fact, doctors diagnosed PTSD. The 1995 incident was not documented in any PBSO records presented at hearing. The only evidence regarding PTSD is contained in Murphy's description of the event and his reaction to it, which he related to a number of doctors he saw in connection with his pending dispute with PBSO regarding his fitness for duty. Murphy expressed to some of these doctors that the transfer to PBIA was provoked by the 1995 incident, but there is no record or testimony corroborating Murphy's opinion in this regard. Murphy has always enjoyed his posting at PBIA, but his personnel file reflects that after three years there, his job performance remained well below reasonable expectations. Although he could handle most of the everyday tasks presented to deputies assigned to the airport, he at times appeared confused when called upon to make a decison for which there was no blueprint. He lacked the knowledge of criminal law and procedure, as well as basic airport operation, reasonably expected of a deputy with his experience. Supervisors gave Murphy credit for a "can-do" attitude and for promptness. However, he had a propensity to blame others or make excuses for his mistakes. It followed that Murphy continued to require a disproportionate share of attention of supervisors, even on routine decisions. Several years into his career, he continued to struggle with basics, for example, maintaining composure when challenged by members of the public or given constructive feedback by colleagues or supervisors. In 1998, it was recommended that Murphy be required to re-enter the field training officer ("FTO") program, and spend at least six months on road patrol to provide "much needed experience and the self confidence that is presently lacking." By the 1998-99 evaluation, supervisors' impatience with Murphy was growing. While acknowledging his ambition and willingness to pursue educational opportunities, the report noted his continued propensity to become aggressive with co- workers and antagonistic to supervisors and "apparent inability to control his temper." Murphy completed the FTO remedial training recommended the previous year, as well as eight additional courses aimed at improving his performance, and achieved an overall performance evaluation of "average, meeting the basic requirements of most [job] descriptions." In early 2000, Murphy received a 90-day unsatisfactory performance notice. In-house remedial training was offered, but the tone of the evaluator was decidedly impatient and frustrated. Murphy's supervisors began to document specific instances of their dissatisfaction with his performance. One example from his 2000 evaluation reads: "After an incident where [Murphy] had taken 21 hours to complete a simple drug arrest, he was placed with an FTO in the airport. These training sessions had little effect on his overall job performance. " While some improvements were noted in 2001, Murphy was again counseled on common sense, judgment and job knowledge. Against this background, an incident occurred on January 18, 2002, which would eventually result in Murphy’s termination. Early that morning, Murphy was off-duty and in a hurry to catch a flight out of PBIA to Washington D.C. via Charlotte. As a result of five years’ experience enforcing airport security protocols, Murphy was well aware that it was impermissible to leave baggage at the skycap station while he parked his car. However, Murphy identified himself as a deputy assigned to the airport and insisted that the skycaps check his baggage for him while he parked. Inside the airport, Murphy observed a lengthy passenger screening line. Murphy admits to feeling "entitled," in that this would be his first vacation in two years. Determined to make his flight, he formed an intent to cut to the front of the line to pass through the metal detectors and then to his gate. Murphy made contact with a fellow deputy, David Shoemaker (Shoemaker) who had been assigned to the airport less than six months. Shoemaker told Murphy to come around the metal detector, which he did, chatting briefly with National Guard officers on duty, as well as the "screening people,” all of whom were well known to him from his years of service at PBIA. At hearing and at all times since the incident, Murphy has attempted to deflect responsibility, saying, ”My intent was to cut in line. My intent was to go through the screening process. However, the deputy sheriff was on duty. I did what I was told, and I walked around the screening area. " It was Murphy, not Shoemaker, who was the experienced sheriff's deputy in this situation. Murphy was reasonably expected to know, particularly in the post-September 11 environment, that it was inappropriate, and possibly illegal, to seek special treatment based upon his personal acquaintance with security personnel. Members of the general public witnessing this "professional courtesy" could be reasonably expected to be irritated, angry, or even in fear for their safety, inasmuch as Murphy was dressed in civilian clothing; the public had no way of knowing that he was any more "safe" than the wheelchair-bound elderly people and babies who are screened in the interests of passenger safety. In this instance, one person was sufficiently annoyed or concerned to report the incident to airport officials and to seek an explanation. By this time, Murphy and his bags were enroute to Charlotte, N.C. At the Charlotte Airport, Murphy and his luggage were briefly detained and searched, and he was thereafter allowed to proceed to his final destination. At some point while on vacation, Murphy called a person named Gilbert Johnson, whom Murphy identified as a friend of his from the National Guard. According to Murphy, "Gilbert had told me that everybody was telling me [sic] I was going to jail for a federal crime, and I was very scared and very worried. " There was no evidence to suggest that Murphy was ever in danger of being jailed for a crime, federal or otherwise. However, the poor judgment he exercised in the service of making his plane would, in time, result in credible medical evidence that Murphy could not, at all times relevant, fulfill the requirements for service as a sheriff's deputy, with or without accommodations. Shortly after the January 18 incident, PBIA officials asked that Murphy be removed from his airport posting, at least until the incident could be investigated. Even before he returned from vacation, PBSO had decided that Murphy would be reassigned to road patrol. Upon his return to work, Murphy met with supervisors. At some point in this meeting, he ceased to participate, instead exercising his right to be represented by counsel. Murphy was informed that he would be suspended with pay pending the outcomes of routine criminal and administrative investigations. Although the facts surrounding the incident were in all material respects undisputed, it took months for PBSO to conclude its internal affairs investigation, which ended with a recommendation that Murphy receive a two-day suspension for having improperly used his status as a law enforcement officer to gain special privileges not available to the general public. No state or federal agency pursued criminal charges against Murphy. Neither the internal affairs investigation nor criminal investigation(s), if any there were, played any role in Murphy's eventual termination. Murphy's anxiety about what he perceived as immense threats to his employment and to his liberty persisted and fed on themselves. The delay in completing the internal affairs investigation exacerbated his fears, particularly his baseless belief that he would be sent to jail for having sought and received special treatment at PBIA. Murphy persisted in the belief that jail was a real possibility, and he was consumed with worry. Almost as distressing to Murphy was the possibility that he would be returned to road patrol, a job for which Murphy correctly believed he was unsuited. In the immediate aftermath of the PBIA incident, Murphy's problems, real and imagined, combined to cause him to decompensate. He became physically ill and emotionally distraught to a degree which rendered him unfit for duty. To his credit, Murphy informed his supervisor that he was uncertain of his present ability to adequately back up fellow officers should the need to do so arise. Concerned for Murphy's well being, a PBSO supervisor sent to his home deputies to check on him, and immediate arrangements were made to have him evaluated by Dr. Raul Diaz (Dr. Diaz). Dr. Diaz supported Murphy's belief that he was at the time temporarily unfit for duty. Dr. Diaz recommended psychological evaluation by Dr. Myles Cooley ("Dr. Cooley"). At hearing, Murphy stated his belief, but offered no evidence, that officers who are the subject of an internal affairs investigation are granted administrative leave to preserve their full salary and benefits pending the outcome of the investigation. In this case, PBSO insisted that Murphy take family medical leave beginning on Februry 1, 2002. By this time, Murphy felt he was able to return to work and sought to persuade PBSO to return him to PBIA. To that end, he cooperated with PBSO's efforts to obtain medical and psychological evaluations. He also proceeded on a parallel track, seeing medical professionals of his own choosing and cooperating in the testing, evaluation, and medication regimens they recommended. In February 2002, Murphy's attorney provided PBSO with signed prescription pad notes from two medical doctors, Sanford Kaufman and Kevin Inwood. Dr. Kaufman’s note read, "No psych diagnosis other than reactive stress. Okay to return to work, no restrictions." Dr. Inwood wrote, "Pt. Is fit for duty after today exam not completed." Neither note indicated the respective doctor's area of specialization, credentials, what tests had been performed on Murphy, what information concerning Murphy had been furnished to them, and from what sources. Standing alone, these doctors' notes did not furnish a factual basis upon which a reasonable person could conclude that Murphy was fit for duty. Meanwhile, Murphy continued to cooperate in evaluations commissioned by PBSO. Dr. Cooley saw Murphy in March and April 2002, and conducted exhaustive testing, including evaluations for attention dysfunction, learning disabilities, and other disorders that might affect his job performance. In speaking with doctors in the course of these evaluations, and in his testimony at hearing, Murphy acknowledged that both before and after being diagnosed with ADD, ADHD, and PTSD, he was fully able to perform the numerous activities of daily living pertinent to a man of his age who has always been active in sports and has held physically demanding jobs. Murphy is unrestricted in his ability to lift, see, hear, breathe, swim, sit, stand, bathe, and dress, all of which are necessary to the performance of active police work, and countless other jobs requiring an individual to be in good physical condition. At all times material to this case Murphy is qualified to work in construction, having built the home he lives in. He is also licensed to operate any type of vehicle, continues to work in the family towing business, and has worked in retail. In his final report dated April 8, 2002, Dr. Cooley concluded, in pertinent part: In this examiner's opinion, Mr. Murphy does have Attention Deficit Hyperactivity Disorder and is significantly intellectually limited. He does not qualify for a diagnosis of a learning disability because his IQ and his academic skills are quite similar. In a more generic sense, however, he is clearly learning disabled based on his limited cognitive skills particularly in the verbal domain. Finally, Mr. Murphy appears to be experiencing a Generalized Anxiety Disorder or an Adjustment Disorder with Anxiety. Mr. Murphy's behavior in the presence of this examiner indicates severe anxiety and fear that he reacts to with anger, denial, defensiveness, and suspicion and he tries to protect himself from people and procedures he does not fully understand. He could truly benefit from some counseling as he awaits the resolution of his employment status. Dr. Cooley's evaluation was forwarded to Murphy's counsel, and to Dr. Diaz, who, after re-evaluating Murphy and reviewing prior test results and Dr. Cooley's report, prepared a second report for the PBSO. In this report dated May 9, 2002, Dr. Diaz concluded that "Murphy, within reasonable probability remains not fit for duty to function in law enforcement at this time." Dr. Diaz left open the possibility that with appropriate treatment, Murphy may, at some future date become fit for law enforcement duty. However, on September 16, 2002, Murphy's own doctor, forensic psychiatrist Harley Stock (Dr. Stock), opined in pertinent part: . . . Murphy is likely to have difficulties in carrying out the following specific duties and responsibilities of a law enforcement officer: Subdue resisting offenders using appropriate force, including the use of deadly force – Deputy Sheriff Murphy may become emotionally overwhelmed if placed in a position in which lethal force may be necessary. In this regard, such behavior may lead to the endangerment of the public or other officers. Conduct law enforcement investigations – Deputy Murphy has a difficult time formulating appropriate law violations. Because of his limited cognitive abilities, he will have difficultly preparing and distributing reports. These deficits may manifest themselves in difficulty coordinating activities at crime scenes; collecting crime scene evidence; conducting interviews, taking sworn statements, formal confessions or depositions; preparing reports of affidavits; and presenting testimony in both civil and criminal proceedings. Should Deputy Murphy be placed in a situation in which his anxiety level overwhelms him, he will have difficulty interacting with the public. His judgment is likely to be impaired in such a situation and he may not follow appropriate procedures. He is also likely to have difficulties in the following area performance aptitudes: Data Utilization – Deputy Sheriff Murphy will have difficulty calculating or tabulating data or information in a systemized way. He also may have difficulty performing actions subsequent to these computational operations. In terms of situational reasoning, Deputy Sheriff Murphy is likely to have difficulty exercising good judgment and decisiveness in those situations that are unexpected and involve exposing the Palm Beach County Sheriff's Office to significant litigation. Based on the above, it is this examiner's opinion that Deputy Sheriff Murphy should be considered permanently unfit for duty. It is further my opinion that no reasonable accommodation can be offered and that his impairment is a direct result of his employment as a law enforcement officer. . . . No purpose is served by additional invasive recitation of the content and conclusions of reports and testimony provided by doctors who evaluated Murphy. The evidence regarding Murphy's fitness for duty, with or without accommodation, has been carefully considered and demonstrates that no combination of job accommodations, medication, treatment or training, would render Murphy able to fulfill the requirements for service as a deputy sheriff at any time material to this case, including at the time he was terminated on October 11, 2002. Notwithstanding the medical evidence, Murphy contends that PBSO had, and continues to have, the ability to ". . . put me into another law enforcement position, which they can clearly still do." With all respect for Murphy's opinion, the unambiguous testimony provided by Respondent’s human relations office is that PBSO does not distinguish between what a deputy is required to do at the airport, on road patrol, or behind a desk. To the contrary, officers assigned to PBIA, or off duty officers for that matter, may be mobilized on a moment's notice to address a profoundly dangerous and chaotic situation, at their assigned post, or elsewhere in the jurisdiction. Contrary to the assertion in his FCHR charge, there was no evidence that Murphy "ask[ed] for help with his law enforcement duties." He rejected as insulting any discussion of being placed in a civilian position or a position involving a substantial wage cut. The only accommodation he sought was re- assignment to PBIA in his former position.
Recommendation Based on the above Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Petitioner’s charge of discrimination and dismissing his complaint. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael G. Whelan, Esquire Whelan, DeMaio & Kiszkiel, P.A. 80 Southwest Eighth Street, Suite 1830 Miami, Florida 33130 Jack Scarola, Esquire Searcy Denney Scarola Barhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner was terminated unlawfully from employment by the City of Orlando (City) on the basis of his national origin and disability, and in retaliation for engaging in a protected activity.
Findings Of Fact Petitioner is a 55-year-old male of Hispanic (Cuban) heritage. He worked full-time as a police officer with the City until 2011, when he resigned his full-time status and was granted permission to begin working as a reserve officer. Reserve officers are appointed by and serve at the discretion of the Chief of Police. Only retiring or resigning sworn officers with at least ten or more years of consecutive service and in good standing can be members of the reserve unit. Currently, around two dozen reserve officers work for the City. A reserve officer must be a sworn law enforcement officer and able to exercise law enforcement authority and make arrests. If a reserve officer is unable to perform law enforcement functions, the Chief of Police will exercise his authority to withdraw his or her reserve status. Reserve officers have no employment or promotion rights. In addition to their contract assignment, they must satisfy a volunteer commitment by working at least 12 hours per month in either a patrol first-responder assignment or pre-approved special assignment. However, the volunteer commitment does not apply to reserve officers working at the Orlando International Airport (Airport). If a reserve officer is unable to fulfill this 12-hour requirement, the Chief of Police will exercise his authority to withdraw his or her reserve status. Beginning in January 2012, Petitioner worked exclusively as an Airport Specialist at the Airport on successive one-year contracts. Reserve officers working at the Airport are called Temporary Employee Police Reserve Officers (TEPROs). The TEPRO program was initiated by the City in 2012 and is designed to augment the number of police officers working at the Airport. This is because the Airport law enforcement contingent has been understaffed for many years.2/ TEPROs have arrest powers, wear uniforms, carry a gun and taser, and are required to take police action just like full- time law enforcement officers. The Greater Orlando Airport Authority (GOAA) contracts with the City to provide law enforcement services at the Airport and reimburses the City for salaries and equipment of full-time officers and TEPROs. Therefore, TEPROs cannot be assigned to any other division in the Police Department. Approximately 70 to 80 officers, including command staff, full-time officers, and TEPROs on one-year contracts, work in the Airport Division (Division). When the events herein occurred, the number of TEPROs working at the Airport was capped at nine. In January 2012, Petitioner entered into his first Temporary/Seasonal Employment Contract with the City, whereby the City agreed to employ Petitioner in the Police Department as a TEPRO for one year from January 2012 through January 2013. At that time, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. Petitioner was not hired for any particular assignment and could be assigned to any number of posts throughout the Division. In March 2013, March 2014, January 2015, and January 2016, Petitioner entered into new employment contracts with the City, whereby the City agreed to hire Petitioner as a TEPRO for one year. The last contract was executed on January 13, 2016, and ran through January 13, 2017.3/ When he signed each contract, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. On September 8, 2016, Petitioner was injured in an on- the-job accident at the Airport. He had pulled over a taxicab for a traffic stop when another vehicle struck his police car from behind, driving Petitioner underneath the dashboard and pinning him there while pushing his car into the taxicab he had stopped. The accident required Petitioner to undergo cervical fusion of his C-6 and C-7 vertebrae in February 2017 and damaged his ulnar nerve causing numbness in his right hand. He still experiences severe pain in his back and neck on a daily basis. Petitioner’s injuries limit his ability to perform manual tasks for extended periods. His musculoskeletal functions are substantially limited, and he cannot sit or stand for prolonged periods. The range of movement in his neck is also substantially limited. He is restricted from pushing or pulling any amount of weight, and from lifting more than ten pounds. As of April 2018, or 15 months after his last contract expired, these medical conditions still existed and prevented Petitioner from performing the job duties of a full-time police officer, such as carrying a weapon, making arrests, responding to calls, assisting other officers, and taking other police enforcement action. Unfortunately, there is still no definitive timetable for a full recovery. Although the City had the discretion to immediately terminate Petitioner’s contract when the accident occurred, it permitted him to assess the injury and address the medical issues. A few weeks after the accident, Petitioner requested an accommodation that would permit him to go on light duty. His request was approved. The City’s policy is to allow full-time officers to remain on light duty for no more than twelve months; they then are required to be medically retired or terminated from employment unless the Chief of Police, at his discretion, authorizes another six-month extension. While he was not sure, the Deputy Chief of Police believed this policy did not apply to reserve officers. Petitioner returned to work on October 13, 2016, in a light-duty capacity because of restrictions imposed by his physician. As noted above, these restrictions prevent Petitioner from responding to a situation that could escalate and require him to take police action. From October 13, 2016, through January 16, 2017 (or three days after his contract expired), Petitioner worked in a light-duty capacity in “district 285.” District 285 is the nomenclature for a police officer position in the Division’s office at the Airport that takes walk-up calls for matters such as stolen vehicles or answering calls from outside or within the Airport for general questions. The office is manned by an officer 24 hours per day, seven days per week. If the officer is on light duty, he works in plain clothes, does not carry a firearm, and, pursuant to Police Department policy, cannot take police enforcement action. District 285 refers to the position during the day shift, while district 185 refers to the position during the night shift. The position cannot be filled by a civilian. At least one officer must fill each shift (day and night) at the front desk of the office. The position is filled by a mix of full-time officers and TEPROs, a few of whom from time to time may be on light duty. If an officer on light duty works the front desk, this would enable an officer with no restrictions to be assigned to a patrol position. If a full-time or reserve officer without restrictions works the front desk, he or she is required to respond to calls for service and take police action for any incidents that may arise. From October 13, 2016, to January 16, 2017, Petitioner worked one to three shifts per week (ten hours per shift) in the front desk position. Officers on light duty are required to submit an Alternative Duty Update (Update) every 30 days in order to remain on light duty and to continue to work. On December 14, 2016, Petitioner provided the City with an Update in order to remain on light duty. The Update indicated that he still had work restrictions (no pushing, pulling, or lifting anything over ten pounds, limited bending, no overhead work, and changing his seated or standing position every 30 to 60 minutes); his physician recommended surgery (which was approved by Risk Management on January 18, 2017, and performed the following month); and there was no estimated date for his return to full duty. After the surgery, Petitioner would be in no-duty and light-duty status until the recovery was complete. The Chief of Police approved his alternative duty request on January 3, 2017. This allowed Petitioner to finish out his one-year contract, which expired ten days later. Contrary to Petitioner’s suggestion, the Update did not constitute a request for an accommodation under a new contract. On or about January 6, 2017, Petitioner was informed by his direct supervisor, Lieutenant Boos, that the City would not be offering him a new employment contract after his current contract expired a week later. When told that his contract would not be renewed, Petitioner did not request an extension of his light duty, a transfer to a light-duty position downtown, a leave of absence, or any other accommodation. Also, he did not ask the City to reconsider offering him a new contract. When he asked Lieutenant Boos if there was a reason why it was not renewed, his supervisor responded “no,” and Petitioner was told that the City just wanted to exercise its right not to renew the contract. Neither Lieutenant Boos, nor the commander of the Division, Captain DeSchryver, knew the exact reason for this action; they knew only that the Deputy Chief had told Captain DeSchryver not to renew the contract. According to Captain DeSchryver, he recommended that the City renew the contract, but after reviewing the matter, the City decided it needed a full-time officer at the Airport. Petitioner filed his TAQ with the FCHR a few weeks later. Even then, he did not suggest a specific accommodation. At the time his contract was not renewed, Petitioner was unable to exercise law enforcement authority or make arrests. The City could not assign Petitioner to the district 285 position for another 12 months because there was no timetable for his return to full duty. Also, the City needed all positions at the Airport staffed by as many full-duty officers as possible who were capable of performing the essential functions of the job. As explained by the Deputy Chief, the City needed to have “a number of full-body officers out there to work the calls and to assist each other and to keep everybody at the airport safe,” and not to just have a certain number of officers assigned to the Airport, even if they could not perform the essential functions of the job. The Deputy Chief went on to explain that “it was decided that we would take another course of action and terminate the contract and get a full-body person at the airport.” He also testified that the City “needed a full-fledged officer out there [at the Airport]”; “we needed an officer who could do the full job of a police officer”; “we just need to have as many full-time officers or full-service officers as we can”; and by hiring a full-time reserve officer, that would give him “a full-time officer out there who can respond to any kind of call out there and also assist the other officers out there to handle anything that comes up.” The Chief of Police added that “it’s really a waste of taxpayers’ money to keep someone on contract in light- duty status when they cannot perform the function of a reserve officer or TEPRO.” Petitioner contends the statements of the Chief of Police and Deputy Chief fall within the category of “the most blatant remarks,” whose intent could be nothing other than direct evidence of discrimination. However, this testimony is not evidence of discrimination, given the fact that Petitioner’s latest Update in mid-December 2016 indicated that he faced impending major surgery, he had numerous doctor-imposed physical limitations, and there was no timetable on when, if ever, he would return to full-duty status. For the first time, in his PRO, Petitioner contends that, as an accommodation, the City should have: (a) executed a new contract and assigned him to the district 285 position for another year, or (b) executed a new contract with a different reserve unit and transferred him to a light-duty position in another division. In essence, Petitioner argues that the City should have given him another one-year contract, even though he was awaiting major surgery (which was performed the following month) and would be on light-duty or no-duty status for an indefinite period of time. Indefinite light duty or no duty is not a reasonable accommodation. If the TEPRO contract was renewed, transfer to another light-duty position in another division was not possible. As a contract employee with GOAA, Petitioner could not be transferred to another division. If Petitioner signed a new contract with another reserve unit, it would be a burden on the City, and an unreasonable accommodation, to assign him to a light-duty position for an indefinite period of time. As it turns out, Petitioner would have been on light-duty or no-duty status for the duration of the renewed contract. Assuming another contract was executed in January 2018, Petitioner would still be on light duty as of April 2018, with no timetable for returning to full service, if ever. In sum, assuming that Petitioner’s injury constitutes a disability, there was no reasonable accommodation that the City could have offered. Petitioner was replaced by another reserve officer, Don Luezzi, a white male, who formerly worked in the Airport Division before he retired and expressed interest in an Airport Specialist position. In 2017, the City also hired Izzy Hernandez, a Cuban, as a TREPRO. His contract was renewed in 2018. Even though his contract was not renewed, Petitioner remained a reserve officer, serving at the pleasure of the Chief of Police. To retain reserve status, however, Petitioner was required to file Updates on his medical status. On April 2, 2017, Petitioner submitted an Update, advising that he remained in no-work status (due to his recent surgery) and that his next follow-up appointment was scheduled on June 1, 2017. On June 26, 2017, Petitioner was issued a Return to Duty Notice (Notice), advising him that his reserve status would be revoked effective September 8, 2017, if he was not able to return to full duty by that date. A Notice is an administrative form letter that is generated and issued automatically to all employees who are on alternative-duty status or medical leave for the preceding six months. From January 2017 through July 2017, Petitioner was unable to work any off-duty jobs as a reserve officer because of his medical condition and work restrictions. During this same time period, he was unable to work as a patrol first-responder or in a pre-approved special assignment as a law enforcement officer. He did not identify any reasonable accommodation which would have allowed him to do so. On July 26, 2017, Petitioner’s reserve status was withdrawn, effective immediately, by the Chief of Police on the advice of counsel and because Petitioner was unable to fulfill the requirements of the reserve unit. Actually, the reserve status could have been revoked earlier because Petitioner was unable to fulfill the requirements of the reserve unit, specifically the requirement that he volunteer 12 hours per month as a law enforcement officer. The withdrawal of Petitioner’s reserve status occurred six months after the TAQ was filed, was not considered by the FCHR, and is not a relevant issue. Assuming arguendo that it is a relevant consideration in the case, there is no evidence that this action was taken for discriminatory reasons. Petitioner is not precluded from re-applying for reserve status or as a TEPRO once he is able to perform the functions of a law enforcement officer and fulfill the requirements of the reserve unit. Petitioner contends the City treated another TEPRO, Kathy Tomas, a white female, more favorably than him by offering her a new one-year contract while she was on light duty. Ms. Tomas suffered an on-the-job injury on March 18, 2017, while attempting to arrest an unruly JetBlue passenger who was refused boarding because of too many carry-on bags. At the time, she was working under a one-year contract that expired in January 2018. Because of a fractured elbow and torn rotator cuff suffered during the arrest, Ms. Tomas went on light duty after the incident. After the elbow injury was resolved, she had surgery performed on her rotator cuff, and, as of April 2018, still remained on light duty. In September 2017, the City entered into new contracts with all of its TEPROs, including Ms. Tomas, in order to effectuate a pay raise. New contracts were necessary because the existing contracts provided for a set pay rate, and without a new contract, the new pay rate could not be implemented. If Ms. Tomas is unable to return to full duty at the expiration of her current contract in September 2018, the City will not enter into a new employment contract with her. Although her accommodation was longer, Ms. Tomas received the exact same accommodation as Petitioner. Petitioner was not treated less favorably than other employees who were similarly situated, based on his national origin or perceived disability. In his PRO, Petitioner asserts the December 14 Update is the protected activity that forms the basis for the retaliation charge. On the other hand, the City’s PRO asserts the only protective activity identified by Petitioner is his TAQ filed in March 2017. (The TAQ was actually filed on January 23, 2017, not in March 2017.) However, both assertions miss the mark, as the TAQ alleges the protected activity is Petitioner’s filing of a workers’ compensation claim. The exact date on which he filed his claim is not of record, but an email indicates that Petitioner spoke with the “workers’ comp case manager” on September 14, 2016, or eight days after he was injured. Resp. Ex. 1. In any event, the TAQ trumps the other assertions and is the only protected activity that has been considered. There is no evidence that the filing of the workers’ compensation claim was in any way related to the non-renewal of the TEPRO contract. The City’s decision to not renew the contract was not based on Petitioner’s heritage (Cuban), disability, or in retaliation for him filing a workers’ compensation claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 18th day of July, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 18th day of July, 2018.
The Issue The issue presented for decision is whether or not Respondent failed to maintain the qualifications of a law enforcement officer and, if so, what penalty would be appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings. Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on December 6, 1974, and was issued Certificate Number 02-12297. From at least June 1982 through August 29, 1986, Respondent was employed as a trooper with the Florida Highway Patrol. During late 1984, Respondent's performance came under scrutiny by Lt. Dun, who was Respondent's supervisor. Lt. Dunn performed an evaluation of Respondent's performance as a trooper on December 28, 1984. Lt. Dunn used a standard appraisal form which uses a numerical evaluation with a range of 1 through 40. The highest score denotes the highest level of performance. A rating of 18 or under denotes a conditional evaluation. On Respondent's 1984 evaluation by Lt. Dunn, he earned a performance rating of 19. Based on his marginal performance, he was given a special evaluation which noted, inter alia, that he had feigned sickness and thereby had misused sick time, by using 81 hours of sick leave while he appeared to be in good health and was late turning in his weekly reports of daily activities, and specifically that Respondent used 81 hours of sick time while he appeared to be in good health. Lt. Dunn gave Petitioner a special evaluation for the third time within 60 days of his 1984 annual evaluation and at that time Respondent received a numerical rating of 17. That rating is indicative of less than satisfactory performance. At that time, Respondent had not improved in the areas found deficient during the time period when he received his 1984 annual performance evaluation and the two succeeding special evaluations. (Petitioner's Exhibit 1) Sgt. David Johnson, the squad supervisor assigned to the Miami office since approximately November 1984, worked with Respondent and directly supervised him during January 1986. On January 9, 1986, Sgt. Johnson and Respondent worked the same shift. Respondent's car had been moved from a shopping mall where he left it unattended for several hours. The car was ordered moved by supervisory officers in the Miami office. Respondent lived near Sgt. Johnson and phoned him to get a ride to work since his car had been moved when he left it unattended at the shopping mall. Sgt. Johnson was aware that Respondent's car had been towed before he called him seeking a ride to work. While in route to work that morning, Respondent told Sgt. Johnson that he needed professional counseling and admitted that he was addicted to drugs and alcohol. Respondent was referred to the highest officer in authority at the Miami station, Cpt. Jack Hardin, for counseling. At approximately 2:45 p.m. on the afternoon of January 6, 1986, Respondent was interviewed by Cpt. Hardin. Respondent told Cpt. Hard in that he needed professional help due to his addiction to drugs and alcohol. Respondent advised Cpt. Hardin that this problem had persisted during the previous six years and that he wanted to save his job. Based on that admission, Cpt. Hardin reassigned Respondent to administrative duties. He also advised Respondent that it was necessary for him to notify Major Grayson, Unit Commander, inasmuch as use of a controlled substance, to wit, cocaine, was a felony. Based on Respondent's admission to use of a controlled substance and the other problems associated with drug addiction, Cpt. Hardin took possession of Respondent's firearm. Since April 1, 1982, Cpt. M. Leggett has been the commander of the subdistrict in Miami known as Troop "E." Respondent was assigned to Troop "E" during all times material to this case. On June 9, 1986, Cpt. Leggett summoned Respondent to his office for a disciplinary interview. Respondent was provided notice of the interview and was represented by legal counsel. Respondent provided a sworn oral statement after he was apprised of the purpose of the interview and the charges which had been filed against him, i.e., possession of a controlled substance in violation of the rules and regulations of law enforcement officers and a notice of the intended disciplinary action. During Respondent's sworn statement, he admitted that he had used cocaine and that use continued during the years 1982 through 1986. In mitigation, Respondent stated during his interview with Cpt. Leggett that his use was "occasional" and that he would only use a gram or two at any given time. At the time of his interview, Respondent appeared to be in control of his faculties. (Testimony of Respondent and Capt. Leggett).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's law enforcement Certificate Number 02-12297. DONE AND ENTERED this 26th day of September, 1988, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Paul A. Lavery 5325 West 20th Lane Hialeah, Florida 33012 Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 2302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
