Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
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 Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, 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 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue At issue is whether there is just cause to terminate Respondent's employment contract.
Findings Of Fact Scallan has been employed by the School Board since November 1976. He began his career as an assistant to the Director of the Internal Funds Department. Over the years the department evolved into what is now the Department of Internal Auditing. Scallan served for over two decades as the Director of Internal Auditing, a position to which he was promoted about four years after starting with the School Board. Scallan's position is one of utmost trust, responsibility and power. He is one of only three of Petitioner's 5000 employees who report directly to the elected School Board. The vast majority of Petitioner's employees report to and are evaluated by individuals who, instead, are accountable to fellow staff members. Scallan, on the other hand, is accountable to the School Board through an audit committee which is comprised entirely of volunteers. At all times material to this case, Scallan supervised six employees including two internal auditors, a departmental secretary, an inventory clerk and two part-time university students known as co-op students. As Director of Internal Auditing, Scallan was employed under a contract for a 12-month term commencing July 1, 2003, and concluding June 30, 2004. The contract is subject to all laws, rules, regulations, are policies governing Petitioner and its employees. The contract specifically provided that the School Board may suspend or remove the employee for cause as provided by law. At all times material to this case, Scallan knew or should have known of his responsibility under the School Board's ethics policy and relevant state rules to refrain from offensive sexual innuendo in the workplace. In addition, as a supervisor, Scallan was obliged to apprise and train his staff annually with regard to the ethics policy, and other School Board policies. Scallan did not take this training responsibility seriously. Instead, he regarded it as "the school district's way of making sure they've legally complied with some requirements." Scallan limited his enforcement activity to collecting employees' signatures annually on a form in which employees acknowledge awareness of district policies then in place. Scallan also failed to take seriously his responsibility to refrain from offensive sexual innuendo in the workplace. On September 5, 2003 one of Scallan's employees filed a formal complaint concerning Scallan's use of offensive sexual innuendo in the workplace. Following an internal investigation, Scallan was suspended with pay. The School Board thereafter decided to terminate his employment, effective November 10, 2003. At hearing, the School Board proved by a preponderance of evidence that Scallan engaged in offensive sexual innuendo in the workplace on at least eleven occasions in the presence of at least seven employees, as follows: Tiffany Barton: At the time of the hearing, Tiffany Barton (Barton), a graduate of California State University with a degree in business administration, was employed by the School Board as an accountant. She was hired in 2002 to work as an internal auditor, with Scallan as her direct supervisor. February 14, 2003 (Valentine’s Day) fell on a Friday. Various employees made small talk throughout the day about their holiday plans. Barton inquired of Scallan how he and his wife celebrated Valentine’s Day. Scallan responded by stating that [she] gives him a “blow-job,” and left immediately thereafter. Scallan flatly denied making this comment, but his denial is not credited. Barton was shocked and embarrassed, and brooded about the comment over the weekend. The following Monday, Barton reported the exchange to a co-worker, Jeanie Pilgram (Pilgram), expressing her embarrassment and concern. Weeks later, Scallan overheard Barton and a co-worker, Scott Woody, discussing the publicity surrounding the musical group Dixie Chicks and their semi-nude appearance on the cover of a national magazine. The word "buxom" was used to describe one of the singers. Scallan interjected himself in the conversation, commenting to the effect that "if you look up the word ‘buxom’ in the dictionary you will see Tiffany’s picture." Barton reasonably viewed the "buxom" comment to be an escalation of his Valentine's Day vulgarity in that Scallan had now personalized the physical appearance in a sexual context of a celebrity with a reference to Barton's body. Barton reasonably believed that such an analogy was inappropriate to the employer- employee relationship. Barton expressed her offense to Scallan, but Scallan persisted, insisting his remark was a compliment. Barton "[tried] to kind of give him a subtle hint like this is off limits. My boss should not be talking about my body." The subtlety was lost on Scallan. On the evening of a conference in Jacksonville, Scallan advised Barton that "whatever would happen in Jacksonville stays in Jacksonville." Barton reasonably interpreted this comment as encouragement to "get wild, have some fun, do whatever in your off hours while you're away from home, whatever happens there, nobody is going to come back and talk about it," including, presumably Scallan himself, who was also scheduled to attend the conference. April 23, 2004, was Barton's wedding anniversary. Her co-workers, including Scallan, were aware of the occasion and that Barton had arranged a baby-sitter, dinner reservations, and inquired of her colleagues regarding a beach upon which they could take an after dinner walk. The following day, Scallan asked of Barton, Did you get lucky?” In addition to directing inappropriate comments toward Barton, Scallan directed unwanted attention toward her. For example, co-op student Kelly Chamberlin (Chamberlin) was disturbed--reasonably so--by Scallan's references to Barton in a high pitched voice saying, "oh Tiffany, oh Tiffany." Chamberlin felt this was "just not right." In late August 2003, Barton was preparing to transfer from Scallan's department to her current position, where she works for Linda Lewis (Lewis), a former friend and employee of Scallan's about whom more will be said below. Again, Barton was subjected to sexual innuendo in violation of School Board policy. Specifically, Scallan remarked on Barton's ’s “great cleavage" and further commented that she was an "attractive person," adding that he liked working with attractive people. Scallan further stated that he was sure Lewis had selected Barton for Barton's analytical skills. So far as Barton is aware, the comments set forth in paragraph 24 were not heard by third parties. Yet, the following morning, Scallan, in the presence of other members of his department, stated that "while lying in bed the night before" thinking about what he had said about [Barton's] cleavage, he had determined that he should apologize. He went on to state, as he had to Barton privately, that he liked working with attractive people; that she [Barton] was attractive; and that she was very analytical which is undoubtedly why Lewis wanted her for her department. Later that week, Scallan encountered Barton in a break room lunching with a colleague. He approached, put his hand on her shoulder, and again made comments about Barton being missed, her analytical skills, and why she had been hired by Lewis. Barton interrupted, hoping to head off a third round of comments about her attractiveness. On August 27, 2003, Barton confronted Scallan in his office explaining how upset she had been because of his comments that had occurred not only that week but during her previous months of employment. Scallan acknowledged the impropriety of his comments, stating that he sometimes likes to say things for "shock value." Barton thereafter spoke with district officials about filing a formal complaint. Barton was encouraged to, and did, take the Labor Day weekend to consider whether she wanted to proceed on a complaint. Following discussion with her husband, she decided to do so. Linda Lewis: At the time of the hearing, Lewis was director of payroll and benefits accounting. Beginning in 1990, she served for ten years in internal auditing, reporting to Scallan. From 1990 through the birth of her first child in 1996, Scallan and his wife were close, social friends with Lewis and her husband. Over the course of their friendship, Lewis wearied of her boss' inability to maintain boundaries in the workplace. When her first child was born, she took advantage of this event to end her social relationship with her boss. Scallan, however, continued to make comments to Lewis or in her presence regarding the sexual activities of other people, as well as comments regarding Lewis’ physical appearance and the appearance of others. Around the time of President Clinton's impeachment and trial in the United State Senate, Lewis brought a dress to the office to loan to a co-worker. Scallan asked Lewis if it were her "Monica Lewinsky dress." Susan Reed: Susan Reed (Reed) has served as Scallan's secretary for six years and worked for the district for 16 years. Her demeanor under oath significantly undermined, if not entirely discredited, Scallan's efforts to characterize Barton, Lewis, and others as a willing audience for his sexual innuendos. In particular, Reed was present for the incident in which Scallan described Barton as buxom and was aware of its upsetting effect upon Barton. She also heard the "Monica Lewinsky" comment, and at least two references to the cleavage of co-workers, including Lewis'. On occasion, Reed attempted to warn Scallan that his comments could be construed as sexual harassment, but for the most part, she kept silent because she reasonably believed that she had no power to change her boss' propensity to engage in offensive sexual innuendo. Elizabeth Cole: In August 2003, Elizabeth Cole (Cole), a student at the University of West Florida, commenced employment as a co-op student. She remains in a similar position today. As a new employee, Cole was required to obtain an ID badge. Scallan arranged to take her by car to the building where the IDs were made. In the course of doing so, Scallan made gratuitous references to the woman who makes the IDs, noting her appearance in general and more specifically her "boob job." Cole was not uncomfortable, and observed that the woman was provocatively dressed. She regarded Scallan's comments as inappropriate and "odd," coming from a man [her] "father's age." In her words, ". . . that's my supervisor that I'm riding in a car [with] to get my ID badge, only being there a week, it seemed inappropriate to me." Debbie Fussell: From 1997-2002, Debbie Fussell was employed in Scallan's department as an internal auditor. Fussell heard Scallan make the "Monica Lewinsky" comment, as well as frequent comments about clothes worn by women in the building. Scallan remarked in Fussell's presence upon women whose skirts were so short that if one were to follow them up the stairs it would be possible to look up their skirts. Scallan also made what he believed to be jokes about Fussell’s having an affair with a School Board member. Fussell neither invited nor appreciated the foregoing comments, but because Scallan was her direct supervisor, she did not risk his ill-will by specifically telling him to stop. Instead, she found, "It was just easier to laugh it off." By way of defense, Scallan offered testimony from witnesses who said he had not been inappropriate towards them, such as principals whose schools were scheduled for routine audit. One such witness volunteered that she had witnessed Scallan being inappropriate towards another woman. The strongest support for the School Board's case came from Scallan's own testimony. Although he denies the "blow-job" comment, he confirmed significant details provided by Petitioner’s witnesses. Taken together, they discredit Scallan's portrayal of himself as a victim, lulled into the belief that his conduct was not offensive because his subordinates did not complain. For example, referring to Barton, he noted, ". . . I've never had somebody sit in my office that upset before over something I said to them. . . . I kept saying I am so sorry that I've hurt your feelings this way. It was not my intent." Scallan also corroborated Cole's account of the ID incident, characterizing his behavior toward the co-op student as benign and helpful. In Scallan's account of the event, ". . . I don't want [Cole] to be offended when you see her, . . . she's rather large breasted. I think she's had a boob job. I don't want you to be shocked when you see her." Scallan's admitted fixation on appearances--particularly the appearance of female co-workers--enhanced the credibility of Petitioner's witnesses and underscored the reasonableness of the School Board's requirement that sexual innuendo be prohibited in the workplace. Apart from Scallan's self-serving opinion, there is no evidence that any of Scallan's employees who witnessed or were the subject of his sexual innuendo were willing participants. Although not every subordinate was upset by every sexually inappropriate comment Scallan made, the record as a whole fully supports the School Board's position that Scallan's subordinates kept silent because they reasonably believed that he was in a position to retaliate against those who objected to his sexual innuendo.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Scallan's employment contract. DONE AND ENTERED this 30th day of March, 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 30th day of March, 2004. COPIES FURNISHED: Debra Dawn Cooper 1008 West Garden Street Pensacola, Florida 32501 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32501 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Room 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Petitioner committed an unlawful employment practice by discriminating against Petitioner based on her sex in violation of Section 760.10(1)(a), Florida Statutes (2008), and by retaliating against her contrary to Section 760.10(7), Florida Statutes (2008).
Findings Of Fact Respondent hired Petitioner as Finance Director in September 2005. Petitioner took the position during a very challenging time because the budget was immediately due, an audit was six months past due, and allegations of embezzlement had been lodged against the former finance director. Petitioner successfully managed these challenges. Petitioner reported directly to the City Manager. The City Manager reported to the City Commissioners. The City Manager directed the day-to-day supervision and management of Petitioner and other department heads. Bill Veach was the City Manager when Respondent hired Petitioner. Mr. Veach gave Petitioner excellent performance evaluations. Additionally, Randy Bush, City Commissioner from 2002 to 2006, and Bob Mish, City Commissioner from 2004 to 2006, commended Petitioner for her work. At the time of the hearing, Ron Vath had been a City Commissioner for eight years. Mr. Vath frequently went to the City Hall to pick up his mail. He often asked Petitioner to compile information or answer questions related to finance matters, especially during budget time. Initially, Mr. Vath was satisfied with Petitioner's work performance. In addition to seeking financial information from Petitioner, Mr. Vath made inappropriate sexual comments to Petitioner. For instance, Mr. Vath would look at Petitioner and say "yum yum." He commented on Petitioner's clothes as being sexy and told her that she "had very nice looking legs." On one occasion, Mr. Vath and Petitioner were standing near the copy machine. Mr. Vath stated in a very low tone, "I don't know what's been going on with my mind lately, it could be the new medication I'm on, but I've been having very erotic dreams lately and you've been in some of them." Sometime in June or July 2006, Mr. Vath was in or near Petitioner's office cubicle discussing some figures. When Mr. Vath became very quiet, Petitioner inquired if he was okay. Mr. Vath then leaned across Petitioner's desk, looked her straight in the eye, and said, "I'm okay, but I have a very big hard on right now." Petitioner pushed her chair away from her desk and told Mr. Vath, "You need to go home and take that up with your wife." After Mr. Vath's inappropriate comment, Petitioner saw James Ramer, Respondent's Water Plant Superintendent. Petitioner told Mr. Ramer that Mr. Vath had made a pass at her. Roger Free was Respondent's Chief of Police until September 2007. Petitioner told Chief Free about Mr. Vath's "hard on" comment. Chief Free advised Petitioner to follow Respondent's procedures and talk to Mr. Veach. A couple of days later, Petitioner verbally reported Mr. Vath's "hard on" comment to Mr. Veach. Mr. Veach suggested that Petitioner file a complaint. Petitioner told Mr. Veach that she did not want to file a written complaint because it might cause her trouble. Mr. Veach honored her request and did not make a written record of the complaint or perform any type of investigation. Bernard Murphy became Interim City Manager in September 2006. When he took the position, Petitioner was introduced to him as "someone people liked and could do good work." In November 2006, Petitioner told Mr. Murphy about Mr. Vath's "hard on" comment. Once again Petitioner decided that she did not want to make a formal complaint followed by an investigation. Mr. Murphy did not make a written record of the allegations, but he told Petitioner to let him know if it happened again. Petitioner requested that Mr. Murphy keep her concern about Mr. Vath's comment confidential. Mr. Murphy honored that request until he learned that Petitioner was telling other city employees and city commissioners. Mr. Murphy then questioned Mr. Vath, who denied making the inappropriate comment. Mr. Vath's attitude toward Petitioner immediately changed. He continued to question Petitioner about her work and to complain to Mr. Murphy about her job performance. However, Petitioner did not experience anymore specific instances of sexually inappropriate comments from Mr. Vath. At all times relevant here, Elizabeth Kania was Mr. Murphy's assistant/human resource director. Months after the incident occurred, Petitioner told Ms. Kania, in an informal conversation, about Mr. Vath's "hard on" comment. Petitioner told Ms. Kania that Petitioner would not report it unless it happened again. Petitioner complained on a regular basis to Ms. Kania about Mr. Vath's questions and requests for additional financial information that added to Petitioner's workload. Elizabeth Mathis was Respondent's utility services manager. Petitioner supervised Ms. Mathis whose workspace was approximately three feet from Petitioner's cubicle. At some point in time, Petitioner told Ms. Mathis about Mr. Vath's sexually inappropriate comment. Kathleen Doyle served as an accountant under Petitioner's supervision. Petitioner complained to Ms. Doyle about one sexually inappropriate comment by Mr. Vath. Ms. Doyle also observed that Petitioner took offense to Mr. Vath's questions. Mr. Murphy, Petitioner, and other members of Petitioner's staff often told off-color jokes to each other. They occasionally used vulgar language and made profane statements in the work place. As a participant in this type of inappropriate office behavior, Petitioner was in no position to complain. Occasionally, Mr. Murphy made specific inappropriate comments that Petitioner never complained of until she resigned. For example, he referred to his former assistant as having big tits. He also stated that his dermatologist was sexy and that a woman in a bathing suit outside his window was attractive. After returning from a humanitarian mission to India, Mr. Murphy stated that Indian women were sensual. These comments occurred over a period of many months. Initially, Petitioner and Mr. Murphy were on a first name basis. However, as time went on, Mr. Murphy began to have justifiable concerns about Petitioner's work performance. At times, Mr. Murphy would become angry and raise his voice at Petitioner. On another occasion, Mr. Murphy inappropriately used his finger to "flip a bird" at Petitioner as he walked off after a disagreement about Petitioner's work. However, there is no persuasive evidence that Mr. Murphy's inappropriate conduct was in retaliation for Petitioner's allegations against Mr. Vath. Mr. Murphy's only formal disciplinary action against Petitioner concerned an attendance issue. He gave Petitioner a written reprimand on April 8, 2008, because she misrepresented the reason for taking sick leave. Petitioner admits that she was not absent on April 7, 2008 due to illness. Instead, Petitioner was in Savannah, Georgia, interviewing for the position that she presently holds. The greater weight of the evidence refutes Petitioner's claim that she was constructively discharged. Petitioner first reported her allegation of sexually offensive behavior against Mr. Murphy in her resignation letter dated April 22, 2008. Specifically, Petitioner claimed that Mr. Murphy spoke about women as being "sensual" and that he made comments about bodily characteristics of women. Petitioner complained about Mr. Murphy's management style of verbal abuse as being belittling, demeaning, and offending. City Commissioner Jane Mealy investigated the complaints contained in Petitioner's resignation letter. Ms. Mealy was unable to substantiate the allegations of sexually inappropriate and harassing behavior. Petitioner had been looking for another job for over one and one-half years because of her low tolerance to criticism. Petitioner resigned her employment with Respondent only after she received an offer of employment from her current employer, Chatham Area Transit Authority. At all relevant times, Petitioner was aware of Respondent's sexual harassment policy. The policy defines sexual harassment as "[u]nwelcome sexual advances of whatever nature, requests for sexual favors or other verbal or physical conduct of a sexual nature." See Section 2-200, Personnel Code of City of Flagler Beach (Personnel Code). Section 2-202 of the Personnel Code states as follows: The city shares a common belief that each employee should be able to work in an environment free of discrimination, and any form of harassment, based on race, color, religion, age, sex, pregnancy, national origin, handicap or marital status. To help assure that none of our employees feel that they are being subjected to harassment and in order to create a comfortable work environment, the city prohibits any offensive physical written or spoken conduct regarding any of these items, including conduct of a sexual nature. This includes: Unwelcome or unwanted advances, including sexual advances. Unwelcome requests or demands for favors, including sexual favors. Verbal or visual abuse or kidding that is oriented toward a prohibited form of harassment, including that which is sexually oriented and considered unwelcome. Any type of sexually oriented conduct or other prohibited form of harassment that would unreasonably interfere with work performance. Creating a work environment that is intimidating, hostile, abusive or offensive because of unwelcome or unwanted conversation, suggestions, requests, demands, physical contact or attentions, whether sexually oriented or other related to a prohibited form of harassment. If an employee believes that he or she is being subjected to any of these forms of harassment, or believes that he or she is being discriminated against because other employees are receiving favored treatment in exchange for sexual favors, he or she must bring this to the attention of appropriate persons in management. The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the city's representative. Consequently, in order for the city to deal with the problem, the employee must report such offensive conduct or situation to the city manager. A record of the complaint and the findings will become a part of the file and will be maintained separately from the employee's personnel file. It is understood that any person electing to utilize this complaint resolution procedure will be treated courteously, the problem handled swiftly and confidentially, and the registering of a complaint will in no way be used against the employee, nor will it have an adverse impact on the individual's employment status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 22nd day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 22nd day of May, 2009. COPIES FURNISHED: Michael H. Bowling, Esquire Bell, Roper & Kohlmyer, P.A. 2707 East Jefferson Street Orlando, Florida 32803 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
Findings Of Fact Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002. Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358. Five months after commencing her employment with Respondent, Petitioner began to look for a new job. Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001. Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later. Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden. Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live. Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices. In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission. On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president. After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002. Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch. The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from 4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo. Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed." On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason." Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her. Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work. Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home. Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home. No one witnessed the alleged stalking of Petitioner by Mr. Reese. Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
Recommendation is, Based upon the Findings of Fact and Conclusions of Law, it RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Facts Stipulated to By the Parties Embry-Riddle is an independent, nonsectarian, not-for- profit, co-educational university. Embry-Riddle serves culturally diverse students seeking careers in aviation, aerospace, engineering, and related fields, with residential campuses in Daytona Beach, Florida, and Prescott, Arizona, and an extended campus (a/k/a Worldwide Campuses) consisting of 156 teaching sites in the United States and Europe. Michael Perry began his employment with Embry-Riddle on November 30, 2001, as a part-time associate center director at Embry-Riddle's Tallahassee teaching site. His job responsibilities were to market Embry-Riddle's programs, enroll students and provide some student services, the timely completion of registration forms and matriculation applications, and basic administrative duties. Petitioner did not have authority to enter into a contract for cellular phone service on behalf of Embry-Riddle that Embry-Riddle would be obligated to pay. Embry-Riddle's Tallahassee teaching site is on the campus of Tallahassee Community College ("TCC"), along with the extended campuses of other higher-education institutions, including Flagler College-Tallahassee and Barry University. In February 2003, Petitioner began to work full-time with the same job title and responsibilities. In February 2004, Petitioner was promoted from assistant center director to associate center director. He received a pay increase, and was given the additional responsibility of supervising an assistant and a Veterans' Affairs ("VA") student employee. At all times, Petitioner's assistant was Katrina Alexander, an African-American female. At all times relevant to this claim, Petitioner's VA student employee was Kiesha Moodie, an African-American female. The Tallahassee teaching site was overseen by Center Director Albert Borovich from a remote site in the panhandle of Florida. On or about May 18, 2005, Ms. Alexander reported that Ms. Moodie advised her that she was uncomfortable about some interaction she had with Petitioner in his office. The precise nature of the interaction is in dispute. At some point after May 23, 2005, Mr. Borovich was given certain memoranda by Dr. Barbara Sloan, advising him of the complaints of sexual harassment by certain unnamed employees of TCC. On June 6, 2005, Mr. Borovich received a copy of a memorandum from Maura Freeberg Wilson to Joketra Hall advising of complaints by female employees of Flagler College-Tallahassee about Petitioner. On June 10, 2005, Debbie Wiggins, the Southeast Regional Director of Operations for Embry-Riddle, and the direct supervisor of Mr. Borovich, provided copies of the alleged victim's statements to Petitioner for response. Petitioner responded to the charge by a report, dated June 15, 2005, denying the claims of sexual harassment and inappropriate behavior. Respondent has a human resources department housed in its headquarters in Daytona Beach, Florida. The human resources department is responsible for investigating complaints of sexual harassment and inappropriate behavior by an employee. The human resources department had not started its investigation of the complaints against Petitioner at the time Ms. Wiggins gave the alleged victim's statements to Petitioner. Rick Snodgrass was appointed by Linda Mobley to investigate the claims of sexual harassment and inappropriate behavior on behalf of Respondent's human resources department. Ms. Mobley was a human resource professional in Respondent's human resource department in Daytona Beach, Florida. Mr. Snodgrass was a human resource professional in Respondent's human resources department in Daytona Beach, Florida. On June 20, 2005, a telephone call was received at the Tallahassee teaching site from Nextel Partners Recovery concerning a delinquent account ("the Nextel Account"). On June 20, 2005, Mr. Borovich called Respondent's payroll department and asked whether Petitioner's paycheck could be held, but was advised that it was too late. At this time, Petitioner had made two payments to Nextel Partners on the Nextel Account at issue. The funds used to make this payment came directly from Petitioner and were not Embry-Riddle funds. On June 21, 2005, Mr. Borovich called Petitioner about the Nextel Account. On June 21, 2005, Petitioner was placed on administrative leave without pay. Petitioner told Mr. Borovich that he had opened the account at issue, that it was in his name, and that he had been paying the bills. The Nextel Subscriber Agreement lists "Embry-Riddle" in the section labeled "Full Customer Name." The Nextel Subscriber Agreement lists the address of the Tallahassee teaching site of Embry-Riddle in the section labeled "Mailing Address." The Nextel Subscriber Agreement lists Petitioner's home address in the section labeled "Shipping Address." The Nextel Subscriber Agreement has Petitioner's signature in the section labeled "Customer Signature." The Nextel Subscriber Agreement has "Assist. Dir. Oper." in the section labeled "Title." The Nextel New Customer Checklist lists "Embry- Riddle/TCC" in the section labeled "Customer/Company Name." The Nextel New Customer Checklist lists "Michael" in the section labeled "Contact." The Nextel New Customer Checklist has Petitioner's signature in the section labeled "NEXTEL Customer Signature." Petitioner provided his driver's license to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle identification card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle business card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's main campus in Daytona Beach to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's Tallahassee teaching site for billing purposes in conjunction with opening the Nextel Account. Petitioner directed that the bills be sent to Respondent's Tallahassee teaching site, "Attn: Michael L. Perry," in conjunction with opening the Nextel Account. Petitioner provided Respondent's Consumer Certificate of Exemption (Embry-Riddle's certificate of tax exemption) to Nextel Partners in conjunction with opening the Nextel Account. On June 20, 2005, Nextel Partners asserted that $936.55 was past due and owing on the Nextel Account. The alleged past due balance was sent to collection by Nextel Partners. The debt collection firm of Lamon, Hanley & Assoc., Inc., sought payment of the alleged past due amount from Embry- Riddle. The debt collection firm of J.J. MacIntyre Co., Inc., sought payment of the alleged past due amount from Embry-Riddle. Mr. Snodgrass was charged with investigating the events surrounding the Nextel Account by Ms. Mobley. The investigations of the claims of sexual harassment and the Nextel Account occurred simultaneously. Mr. Snodgrass traveled to Tallahassee on June 23, 2005, during which he met with several individuals regarding the claims of sexual harassment. The complainants from TCC, Flagler College- Tallahassee, and Barry University declined to participate in the investigation on the advice of their legal counsel. Ms. Moodie indicated to Mr. Snodgrass that she had addressed her concerns directly with Petitioner, and she withdrew her complaint. Mr. Snodgrass interviewed Petitioner last, in the presence of Mr. Borovich. Mr. Borovich was not present during the interviews of the female witnesses. At that time, Mr. Borovich found that there was insufficient evidence to make a finding on the claims of sexual harassment, and he recommended no direct discipline of Perry on the claims of sexual harassment. Mr. Snodgrass also discussed the Nextel Account with Petitioner during the meeting of June 23, 2005. Petitioner again asserted that the Nextel Subscriber Agreement was an agreement personal to him, and not an agreement between Nextel Partners and Embry-Riddle. Petitioner was advised that his employment was being terminated because of the actions surrounding the Nextel Account, but he was offered the opportunity to resign instead. Petitioner chose to resign his employment with Embry- Riddle. Petitioner's termination was involuntary. Respondent employs African-Americans in its extended campuses across the United States, including faculty, center directors, and associate center directors. Additional Findings of Fact Not Stipulated to By the Parties Petitioner is a 49-year-old African-American male, who has always lived in the southern United States. Petitioner was qualified for his position and had not been the subject of discipline in connection with his employment until January 2005, when he received a letter of reprimand from his supervisor, Mr. Borovich. In addition to his employment at Embry-Riddle, Petitioner has served as a minister, and has had experience counseling others who have been the victims of racial discrimination. Petitioner testified to his belief that Respondent discriminated against him by automatically concluding that he was guilty of committing fraud by obtaining the Nextel cellular phone because he was an African-American male. Petitioner testified to his experience, and as a minister counseling other victims of discrimination, that African-American males are considered guilty regardless of proof, and may still be considered guilty if they stand up for their rights. Petitioner believes that society generally feels that African-American males cannot tell the truth. Petitioner also testified that he was hurt the most by being accused by Respondent of being a thief without the opportunity to provide documents to rebut Respondent's accusation. Petitioner testified to his experience and belief that African-Americans, who have been the victims of racism in the South, have often been put in the position of having no chance to present evidence disproving the charges levied against them. Petitioner testified that he received a telephone call from Mr. Borovich, on May 23, 2005, ordering him to immediately apologize to the three alleged victims of sexual harassment or inappropriate conduct. He believed he was not given an opportunity to dispel Mr. Borovich of any notion that he had acted inappropriately towards the three women, nor had any investigation been performed at that point. Petitioner complied with the order to apologize to the three alleged victims of the sexual harassment, and testified he felt humiliated as a result of the experience. He believes he was "taken back" to a time in our society when he would have been guilty just because a white man said he was guilty. Mr. Borovich testified at the hearing that he did not recall ever speaking with Petitioner on May 23, 2005, nor did he recall "ordering" Petitioner to apologize to the alleged victims. Petitioner testified that he complained about the fact that he was forced to apologize to the three alleged victims of sexual harassment, and that his complaints were ignored by his superiors. Respondent is an equal opportunity employer that regularly trains its employees in seminars about equal opportunity employment, sexual harassment, and disability. Respondent maintains extensive employment policies in a policy manual referred to as both a POM and an APPS. These policies are reviewed with Embry-Riddle personnel at orientation, and made available to all personnel electronically through an intranet site at any time from any computer. Respondent has policies prohibiting sexual harassment and racial discrimination. Respondent's policies and procedures provide that individuals reporting sexual harassment should contact human resources, which would then conduct an investigation. This investigation is then conducted according to Respondent's policies and procedures. At all times relevant to this matter, Respondent had three employees physically located in the administrative offices of the Tallahassee teaching site: Petitioner, Ms. Alexander, and Ms. Moodie. According to Mr. Borovich, Petitioner was a good marketer, but had some difficulty in meeting deadlines. Ms. Alexander determined that her interaction with Petitioner on May 18, 2005, fit within Respondent's definition of sexual harassment. Respondent's policy requires that a supervisor who is made aware of sexual harassment must report the incident. Ms. Alexander attempted to contact Mr. Borovich on May 18, 2005, but he was not in his office. She, thereafter, consulted the policy and procedures manual and determined she was to contact the faculty chair when the center director was unavailable, which she did. Once he received the complaint from Ms. Alexander, Mr. Borovich began gathering information from the people involved, and then he reported the alleged sexual harassment to Respondent's human resources department pursuant to Embry-Riddle policy. Ms. Moodie told Ms. Alexander that she did not believe she was sexually harassed, but that she felt uncomfortable standing on top of a table and writing on a white board while Petitioner and Mr. Deric Mordica, a student, watched her from behind. Petitioner believes that Ms. Moodie's complaint to Ms. Alexander "started this whole thing." Both Ms. Moodie and Ms. Alexander are African-American. Maura Freeberg Williams, during the relevant time period, was employed in a supervisor capacity by Flagler College, whose offices were located in the same building as Embry-Riddle's Tallahassee teaching site. Joketra Hall, during the relevant time period, was employed in a supervisor capacity by TCC on whose campus Respondent is located. Debbie Wiggins, during the relevant time period, was the Southeast Regional Director of Operations for Respondent, and Mr. Borovich's direct supervisor. Her office was not located on the Tallahassee teaching site. When Ms. Wiggins provided Petitioner with copies of the alleged victims' statements on June 10, 2005, she was told by Ms. Mobley that she had breached investigative protocol which dictated that the human resources department was to interview Petitioner prior to him seeing the statements. This is done in order to maintain the anonymity of the victim until human resources has had the opportunity to investigate. Ms. Mobley directed Ms. Wiggins to refrain from involving herself in the investigation, which was to be conducted by the human resources department. These discussions were memorialized in electronic mail between Ms. Mobley and Ms. Wiggins. Mr. Snodgrass testified that this breach in protocol nearly compromised the investigation, but it was caught in time to conduct a proper investigation. Mr. Snodgrass determined how the investigation would be handled, decided whom Respondent would interview, and decided which statements from individuals would be taken. Mr. Snodgrass also determined the outcome of the investigation. Mr. Snodgrass made a trip to Tallahassee on June 23, 2005, during which he met with and questioned several individuals regarding the claims of sexual harassment. Since Ms. Moodie refused to discuss the alleged incident because she had already discussed it with Petitioner and withdrawn her complaint, and since the employees of TCC, Flagler College-Tallahassee, and Barry University declined to speak with Mr. Snodgrass, he concluded the sexual harassment complaints could not be sustained. Mr. Snodgrass met with Petitioner during his June 23 trip to Tallahassee and requested that Mr. Borovich attend the meeting as a witness. Mr. Snodgrass performed the questioning without comment by Mr. Borovich. The first part of the meeting dealt with the sexual harassment claims. Following the questioning, Mr. Snodgrass determined that the evidence was insufficient to make a finding of sexual harassment. He put aside his folder concerning this claim. The second part of the meeting concerned the Nextel cellular phone contract. Mr. Snodgrass asked Petitioner how he came to have two phones in Embry-Riddle's name. Petitioner repeated the information he had given to Mr. Borovich. Mr. Snodgrass presented the documents concerning the Nextel Account to Petitioner. Mr. Snodgrass believed that the Nextel documents were more credible than Petitioner's answers to his questions concerning the Nextel Account. Petitioner testified that he contracted with Nextel to obtain personal cellular telephones for himself and his wife. Petitioner entered into the Nextel contract to receive a discount being offered to public employees and people working for universities which he learned about through a document that was faxed to the machine he shared with others at TCC. Petitioner met with the Nextel representative at his office to complete the paperwork. Petitioner agreed to have his monthly bills sent to his office where he also received other personal bills. Petitioner paid for his cellular telephone usage with his own funds. Petitioner received the benefit of using Respondent's tax exempt certificate on his contract with Nextel. Petitioner entered into a dispute with Nextel over the quality of his telephone service, which led to the matter being turned over by Nextel to its collection agents. Petitioner never resolved the matter of his dispute with Nextel over the quality of his telephone service. After Petitioner's termination from employment, Respondent paid the past due amount for Petitioner's phone to Nextel out of funds owed to Petitioner for unused leave time during his employment. Mr. Snodgrass advised Petitioner at the time of termination of his employment that he had violated school policy by entering into the cellular phone contract. Petitioner was informed that his "employment was being terminated due to the fact that he opened [the Nextel] account without proper permission." Petitioner did not have contracting authority to bind Respondent. Respondent provides cellular telephone allowances for some of its employees who travel a great deal. None of Respondent's employees have cellular telephones that are owned or contracted for by Respondent. The decision to terminate Petitioner was made by Ms. Mobley. Mr. Borovich was not involved in the decision to terminate Petitioner. Ms. Mobley was not aware of Petitioner's race until she reviewed the documents regarding the Nextel Account, which included a photocopy of Petitioner's identification card. Ms. Mobley testified that the investigative protocols used concerning Petitioner were the same she would use regardless of the employee's race or gender. Following Petitioner's resignation, Ms. Alexander performed Petitioner's prior duties, and was the only person designated to the Tallahassee teaching site for the next 18 months. At that time, the position formerly held by Petitioner was given to a white female. Petitioner sought unemployment benefits, giving as his reason for his termination a "permanent layoff" due to "reduction in force due to lack of student enrollment." Ms. Alexander testified that she worked closely with Petitioner and Mr. Borovich, and that she socialized outside of work with Mr. Borovich. Ms. Alexander never witnessed Mr. Borovich act in a racially discriminatory manner towards her or Petitioner. Petitioner was not aware of any African-American males employed at his level or higher in the organizational structure of Embry-Riddle. Embry-Riddle employs 190 African-Americans out of 1,500 total employees in its worldwide campuses, including faculty, center directors, and associate center directors. Ninety percent of those African-American individuals were in positions equal to or higher than that held by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael O. Murray, Esquire Embry Riddle Aeronautical University 600 South Clyde Morris Boulevard Daytona Beach, Florida 32114 Bill Reeves, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32309 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue Whether Respondent, Lincare, Inc., is liable to Petitioner, Sharon Ford, for subjecting her to a hostile work environment based on sexual harassment.
Findings Of Fact The Parties and Complaint Allegations Lincare is a Tampa-based company that focuses on home- healthcare services. It has an annual revenue of over $3 billion and is a wholly-owned subsidiary of a company based in Germany. Ms. Ford, a married woman with children, is an accountant and an attorney. Lincare first hired her as its acquisition counsel in 2001 and promoted her to director of acquisitions in 2002. She held that position for almost 15 years before she left the company on January 27, 2017. Mr. Tripp, a married man with children, served as an Arabic linguist in the Army before obtaining his law degree. Lincare hired Mr. Tripp to replace Ms. Ford as its acquisition counsel in 2002 and promoted him to general counsel in 2013. He still holds that position. On January 19, 2018, almost a year after leaving Lincare, Ms. Ford filed a Complaint with the Commission alleging a hostile work environment. She alleged that Mr. Tripp, over a 15-month period from December 2015 through March 2017, subjected her to severe and pervasive sexual harassment. On July 13, 2018, the Commission issued its notice of determination of no reasonable cause and mailed it to Ms. Ford. The notice advised her that she “may request an administrative hearing . . . by filing a Petition for Relief within 35 days of the date the determination was signed by the Executive Director.” Ms. Ford received the notice in the mail on July 16, 2018. On August 16, 2018, 34 days after the Commission issued its notice, Ms. Ford requested an administrative hearing by mailing her Petition to the Commission via U.S. mail. The Commission received the Petition on August 20, 2018. On the same day, the Commission generated its transmittal letter. But, instead of transmitting the Petition to DOAH, the Commission advised Ms. Ford that the Petition appeared to be untimely because it was received three days beyond the 35-day deadline under section 760.11(7), Florida Statutes. After Ms. Ford responded that she timely requested a hearing by post-marking her Petition before the 35-day deadline, the Commission transmitted the case to DOAH on September 21, 2018. The transmittal letter, dated August 20, 2018, did not dismiss the Petition as untimely but rather requested assignment of a judge to “conduct all necessary proceedings required under the law.” Lincare’s Structure and Policies Between 2015 and 2017 Lincare had three officers: chief executive officer (“CEO”), chief financial officer (“CFO”), and chief operating officer (“COO”). The corporate chart had the CEO at the top and the CFO and COO, who reported to the CEO, immediately thereunder. The second tier of the chart listed six department heads, none of whom were corporate officers: corporate compliance officer, head of business innovation, head of human resources, head of public relations & communications, general counsel, and director of acquisitions. These managers were equal on the hierarchy chart and all reported directly to the CEO. As director of acquisitions, Ms. Ford brought in the deals, negotiated the business side, and quarterbacked them to closing. She helped move the deals along by ensuring that Lincare personnel communicated and accomplished their required tasks. She provided business advice to the legal department and worked closely with the acquisition attorney (on smaller deals) and the general counsel (on larger deals). Ms. Ford received a salary and an objective bonus tied to the deals that closed.2/ As the general counsel, Mr. Tripp oversaw legal affairs and supervised five lawyers in the legal department, but had no control over any other department. As to the deals, Mr. Tripp handled the legal aspects, such as contracts, due diligence, and compliance, provided legal advice, and assessed risks. The CEO, COO, and CFO had sole authority to decide whether a deal closed. Mr. Tripp received a salary and a discretionary bonus tied to the company’s financial success in a given year. Although Ms. Ford and Mr. Tripp gave each other advice, they were equals on the corporate chart. Mr. Tripp had no authority over Ms. Ford and lacked the power to hire, discipline, promote, transfer, fire, or control her compensation. They were coworkers who both answered directly to the CEO. The head of human resources (“head of HR”) ran the HR department and its roughly 15 to 18 employees. Directly under the Head of HR was the employee relations director, Ms. Adams. Among other things, the HR department oversaw the employee handbook and investigated reports of discrimination and harassment. The handbook included a detailed anti-harassment policy forbidding sexual harassment by any employee at work or at work-related events outside the office. Harassment was defined to include unwelcome sexual advances, requests for conduct of a sexual nature, and other unwelcome behavior that was personally offensive and interfered with work effectiveness done in person or through electronic means. The policy prohibited any employee from making employment decisions based on the submission to or rejection of sexual advances, and noted in bold that any violation would subject an employee to discipline up to an immediate discharge. The handbook contained a detailed reporting procedure for employees who believed, had concerns, or suspected they or anyone else may have been harassed. The policy required them “to immediately notify” a named individual based on their location, which included the employee relations director or the HR Manager for employees in the corporate office. The handbook required employees to follow the procedure and noted that the failure to do so could adversely affect their rights to pursue a claim. Lincare took harassment allegations seriously. Once an allegation was reported, the employee relations director or HR managers investigated; the legal department was not involved unless a particular legal question arose. They obtained as much information as possible from the victim, spoke to potential witnesses, reviewed available documents, and interviewed the accused. If the investigation uncovered no corroborating evidence and the accused denied any wrongdoing, a report would be added to the accused’s personnel file; upon a second allegation, the accused would be terminated. If a supervisor retaliated against an employee for reporting harassment, that supervisor would be terminated. Lincare disseminated the handbook and updated versions to employees and required them to sign a form acknowledging that they received the handbook and would abide by its policies. Ms. Ford signed such forms each time she received a revised handbook, including in 2015——the version in effect until she left Lincare in January 2017. She knew about the harassment policy, the reporting requirement, and the fact that her failure to so report could adversely affect her rights. Friends and Coworkers for Over 15 Years Ms. Ford and Mr. Tripp worked closely together at Lincare for 15 years and they became good friends in the process. When Lincare hired Mr. Tripp as acquisition counsel in 2002, he worked closely with Ms. Ford on hundreds of deals. They were in constant, daily contact to strategize, handle diligence and compliance issues, advise each other on the tasks they both had to complete, and ensure the deals closed. They also had a close friendship. They regularly went to lunch alone and with others, as often as three days per week, attended social events with mutual friends, and spoke on the phone and texted about business and personal matters. They had much in common as married parents with kids around the same age and they enjoyed each other’s company. When Mr. Tripp became general counsel in 2013, Ms. Ford initially worked closely with the new acquisition counsel. In late 2014, however, she and Mr. Tripp resumed working closely together when Lincare began negotiating larger transactions. Project Maverick was the largest acquisition of Ms. Ford’s career and it closed in March 2016. Project Falcon was the largest divestiture of her career and it closed in August 2016. These two deals, and others, required Ms. Ford and Mr. Tripp to work even more closely together from 2015 until she left the company in January 2017. They often met multiple times per day. Ms. Ford sought Mr. Tripp’s assistance on the legal side and he sought her assistance on the business side. As before, she remained the quarterback shepherding the deal forward. Their friendship continued during this period. They invited each other to lunch regularly, alone and with coworkers. They attended social events with friends, including holiday dinners in 2015 and 2016. On out-of-town work trips, they rented cars together and sometimes spent time alone, such as for meals. They continued to text and speak on the phone about business and personal matters. They talked about their families, children, and other personal matters much like longtime friends do. They checked in on each other when personal crises occurred. And, when Ms. Ford began tense negotiations with the CEO about her compensation, which ultimately led her to leave Lincare, she relied on Mr. Tripp as a sounding board and for moral support. Even after Ms. Ford left the company in January 2017, she maintained contact with him. They had lunch alone at least once. For months, they continued to text each other, even about personal matters such as when she texted him after he had been in a car accident. However, their communication largely ceased once Ms. Ford filed a lawsuit against Lincare over her compensation. Ms. Ford’s Testimony Accusing Mr. Tripp of Sexual Harassment The first incident occurred on December 11, 2015. In that 10 to 20 minute conversation in her office, Mr. Tripp professed strong feelings for her and that he desired a confidential, sexual relationship with her. She rejected him and said they were just friends. She immediately called her husband and spoke to him all the way home. She felt humiliated, embarrassed, and angry. She did not attend a football game that weekend with other coworkers to avoid Mr. Tripp and kept her communications with him to e-mail for the next week. The second incident occurred in her office later in December 2015. While discussing another affair that may be happening at work, Mr. Tripp said he could not report the other employee because he wanted to do the same thing with Ms. Ford, notwithstanding the professional and personal risks. She again rejected him. For the next few weeks, Ms. Ford tried to avoid him as much as possible, but she had to face him because the deals began to lag. She said he continued to make comments here and there, but she offered no specific details. The third incident occurred in January 2016, after a conference call in Mr. Tripp’s office. He said he knew Ms. Ford was avoiding him, but he could not function. He told her he was willing to leave his wife, but she again rejected him. Over the next few months, the comments and innuendo pretty much ceased so Ms. Ford decided to go back to being friends to ensure that the Maverick and Falcon deals closed. However, a fourth incident occurred in the parking lot after a late conference call in June 2016. Mr. Tripp professed that his feelings were stronger now and that he was waiting for Ms. Ford to change her mind. She said her feelings had not changed and he said he understood. For the remainder of 2016, Ms. Ford testified generally that Mr. Tripp continued to make comments about his inability to function and that he got more obsessive as the year progressed. But she offered little detail about the comments or where and when they occurred, except that she had to be around Mr. Tripp’s wife several times and she and Mr. Tripp agreed it was uncomfortable. The fifth incident occurred in October 2016 when Mr. Tripp told her he was learning Hebrew to “connect” with her in her native language. He tried to communicate with her in Hebrew in person and via text, despite her telling him to stop because it made her very uncomfortable. As a result, she again started to avoid him at the office, though he texted her to see if she was alright and admitted to acting like a high school student. In January 2017, Mr. Tripp continued with innuendo, spoke in Hebrew, and told Ms. Ford that he might move closer to her. She believed he was obsessed, which made her nervous about his stability and her safety. But she offered no specific dates on which these events occurred. Mr. Tripp came to Ms. Ford’s office twice that month after she had heated meetings with the CEO, including on her last day at the company, January 27, 2017. He cried because he could not imagine how he would go on if she left, as she was the only reason he came to work every day. That evening, he told her on the phone that he now knows what a divorce feels like. Mr. Tripp continued to harass her following her departure, including taking his family to the same ski resort in March 2017. She testified that she stayed in her room to avoid him and never initiated contact with him while there, though text messages admitted into evidence confirm she texted him several times, about a security breach and generally about his vacation. In January 2018, a year after she left the company during a mediation of her lawsuit against Lincare, Ms. Ford for the first time accused Mr. Tripp of sexual harassment. She had not reported the allegations pursuant to Lincare’s policy, though she knew it required her to do so. She never informed other coworkers either. In fact, the only person she said she told was her husband, though he did not testify at the hearing. Ms. Ford testified that she did not report the allegations because she had a contentious relationship with the CEO during this period and she believed the CEO would terminate her. She also was concerned that Mr. Tripp was unstable and could decide to kill the deals to ensure she missed out on her bonuses. Lastly, she thought reporting would be futile due to Lincare’s culture of harassment, including by one of the two individuals to whom she was directed to report, the head of HR. Mr. Tripp’s Testimony Denying the Alleged Sexual Harassment Mr. Tripp said that he never harassed Ms. Ford. Indeed, no one has ever accused him of harassment. He said he never expressed romantic feelings for her, suggested having a sexual relationship with her, or did anything to scare her. Ms. Ford’s allegations against him came as a shock. He believed they had been good friends for over 15 years and she never indicated otherwise. They enjoyed each other’s company, had children around the same age, and spoke often about business and personal things, like friends often do. Even during the period of alleged harassment, he noticed no changes in her behavior. They continued to invite each other to lunch regularly, often eating together alone, and continued to discuss deeply personal matters about their families. They texted each other often and attended holiday dinners with friends. She chose to sit next to him at a work event at a hotel in the fall of 2016. The same could be said for business trips during this period. On a March 2016 trip to New York, Ms. Ford left a group dinner early with him because he was sick, they worked out the next day, and had breakfast. On an August 2016 trip to Nashville to celebrate the closing of the Maverick deal, they rented a car together and went to dinner alone after Ms. Ford invited him. On a trip to New York in August/September 2016, Ms. Ford stayed with Mr. Tripp to retrieve his briefcase from the office and went to the airport together after the rest of the team left. Mr. Tripp admitted to learning some Hebrew, but because he liked languages (he was an Arabic linguist in the Army), not to become romantically connected to Ms. Ford. He practiced with her because she was the only person he knew who spoke Hebrew, just as he did with other coworkers who spoke another language. She never said it made her uncomfortable. Mr. Tripp also admitted that his wife suggested moving closer to Plant High School because it had a beneficial program for their son. The idea had nothing to do with Ms. Ford, who did not live nearby, and they decided not to move in any event. Even on her final days at Lincare, they had usual interactions. Mr. Tripp admitted calling Ms. Ford the evening of her last day (but said he had not come down to her office earlier) to express concern for his friend and sadness that they would no longer be working together. He did not recall commenting about a divorce, but if he had, it only related to her being a friend. For a few months after she left Lincare, Mr. Tripp believed their relationship had not changed. They continued to text each other and had lunch alone at least once. Though he took a ski trip to the same resort in March 2017, his wife chose the resort and Ms. Ford reached out to him several times during that trip to see how he was doing. Ms. Ford also texted him after he had a car accident in March/April 2017. It was not until several months after Ms. Ford left Lincare and filed her lawsuit against the company that he noticed a change in her attitude. At one point, he invited her to lunch with a mutual friend, but she did not respond and he later learned they had lunch without him. Ms. Ford also told him on the phone that he was going to hate her someday, though he had no idea then what that meant. After a hurricane in August/September 2017, he reached out to make sure she was safe; she thanked him and wished his family well too. That was their last communication before the sexual harassment allegations were made. Credibility Findings as to the Conflicting Testimony After hearing the conflicting testimony from Ms. Ford and Mr. Tripp and observing their demeanor, the undersigned found it exceedingly difficult initially to determine who is telling the truth and who is quite an effective storyteller. Ms. Ford’s conviction in her accusations against Mr. Tripp was equal to his conviction in his denials. But, when considering all of the record evidence and testimony, the scales of credibility tip in Mr. Tripp’s favor for several reasons. For one, Ms. Ford cultivated a professional and personal relationship with Mr. Tripp throughout the alleged harassment period and continued to do so even after she left Lincare. Although she said she maintained contact because they had to work together and she wanted him as an ally, she also accused him of stalker-like, obsessive, humiliating, and unstable behavior. Her efforts to maintain a friendship with him, even after leaving Lincare, are at odds with someone who feels humiliated and fears for their safety. Ms. Ford’s testimony also veered from the affidavit she filed with the Commission. She testified that he generally made comments between November 2016 and January 2017, yet her affidavit offered more specifics as to the comments allegedly made. Her testimony about him moving to her neighborhood was entirely omitted from her affidavit. Her testimony about his efforts to sometimes communicate with her in Hebrew was at odds with the affidavit’s claim that he did so “continuously.” And, her testimony about the comments he made on her last day at Lincare differed as to substance and degree from her affidavit. Further, Ms. Ford’s testimony was directly refuted by other evidence. She testified that she did not affirmatively communicate with him about anything personal in March 2017, but text messages confirm that she checked in with him several times during the trip about his vacation and engaged in more friendly conversation than initially admitted. Ms. Ford’s reasons for waiting until a year after she left Lincare to report the accusations also call her credibility into doubt. Though she testified that she feared Mr. Tripp would kill two large deals and her bonuses therefrom, those deals closed in March and August 2016, and yet she never reported the allegedly ongoing harassment before she left Lincare at the end of January 2017. It also cannot be ignored that she waited until January 2018 to report the accusations and did so during the mediation of her compensation lawsuit against the company. Lastly, though not fatal to her claim, Ms. Ford’s failure to present any corroborating evidence cannot be ignored. She testified that she lost weight, suffered hair loss, and could not sleep, and said that it was the worst year of her life. Yet, the record is devoid of evidence that any other friends or coworkers noticed such changes, that she missed work or social events, or that she suffered at work in any way. She said he sent her inappropriate text messages, but provided no proof of them. She apparently kept a journal about work issues, but did not document the harassing incidents. And, though she said she immediately told her husband in December 2015, she chose not to present his testimony even though he was the only person who could corroborate her accusations.
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 Petitioner, Sharon Ford, failed to timely file her Complaint and, regardless, that Ms. Ford failed to establish that Respondent, Lincare, Inc., committed an unlawful employment practice against her, both of which warrant dismissal of her Petition for Relief. DONE AND ENTERED this 17th day of May, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2019.
Findings Of Fact At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise". On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, imposes an administrative fine in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year. DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1994.
