The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005.
The Issue Whether Respondent, Coastal Health,1/ discriminated against Petitioner, Tyshoan Wilcox, in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by disciplining and then suspending her, in retaliation for her participation in an investigation of a co- worker?s sexual harassment complaint against Coastal Health.
Findings Of Fact Coastal is a 120-bed skilled nursing facility located in Daytona Beach, Florida, operated by MF Halifax, LLC, d/b/a Coastal Health and Rehabilitative Center (Coastal Health). Coastal Health is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended (chapter 760, Florida Statutes), and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a female Licensed Practical Nurse (LPN) who was employed by Coastal Health from sometime in 2005 until her resignation on September 27, 2011. Her first position with Coastal Health was as a floor nurse. She was promoted to “Wounds and Restorative,” then to Unit Manager in March 2011. The Unit Manager?s job description is “to assist the Director of Nursing (DON) in leading and directing the overall nursing operation of a unit in the facility in accordance with residents? needs, government regulations and company policies so as to maintain excellent care for the residents while achieving the facility?s business objective.” Among the Unit Manager?s essential job functions is the responsibility to “ensure practices that maintain high morale and staff retention to include effective communication, prompt problem resolution, positive supervisory practices and maintaining a positive work environment.” Petitioner worked the seven o?clock a.m. to three o?clock p.m. (7 to 3) shift and supervised six or seven Certified Nursing Assistants (CNAs) and three nurses. As reflected in the Discrimination Complaint, the claim asserted by Petitioner against Coastal Health in this proceeding is unlawful retaliation by Coastal Health allegedly based upon Petitioner?s involvement in an internal investigation into a co- worker?s complaint of sexual harassment. Sexual Harassment Complaint One of the CNAs under Petitioner?s supervision at the time in question was Evelyn Clark. Petitioner is hostile toward Ms. Clark. Petitioner believes Ms. Clark had a relationship with the facility Administrator, Michelle Carroll, which undermined Petitioner?s ability to supervise Ms. Clark. Petitioner testified that Ms. Clark made inappropriate comments of a sexual nature to her and that she observed Ms. Clark making inappropriate comments and sexual innuendos to other employees. She testified that she reported these incidents to Ms. Carroll and to then-Director of Nursing, Jeanie Mendoza. Petitioner maintains that no action was taken against Ms. Clark. Petitioner was friendly with another CNA, Chad Johnson. Mr. Johnson was not supervised by Petitioner; in fact, he worked the three o?clock p.m. to eleven o?clock p.m. shift (3 to 11), and their shifts rarely overlapped. Sometime in the third week of August, 2011, Mr. Johnson lodged a complaint with Coastal Health, claiming Ms. Clark touched him inappropriately and made sexual comments to him. Petitioner testified that Mr. Johnson reported Ms. Clark?s alleged sexually inappropriate conduct to her prior to complaining to management, and she directed him to go to management with his complaint. She also testified that she brought Mr. Johnson?s complaint to the attention of Ms. Mendoza the same day he reported it to Petitioner. The Investigation Christy Teater, Director of Operations for Coastal Health, initiated an investigation in response to Mr. Johnson?s sexual harassment complaint. The investigation entailed interviews of over 30 employees at Coastal, including the Petitioner. During the interviews, employees were asked whether they had witnessed inappropriate conduct at the facility, and if so, the nature of the conduct and the names of the individuals involved. Petitioner was interviewed in connection with the investigation on August 23, 2011, by Ms. Teater and Jacklene Wolf, Nurse Consultant for Coastal Health. During the interview, Petitioner reported that she had witnessed Ms. Clark engage in inappropriate behavior in the workplace. She described Ms. Clark?s derogatory comments to her, such as calling her a “T-back” (which is a reference to Petitioner?s underwear), and making grabbing motions at her buttocks. Petitioner did not name any other employee as having engaged in inappropriate behavior at the facility. The investigation was an internal corporate investigation and was not triggered by a complaint to either the Florida Commission on Human Relations or the Equal Employment Opportunity Commission. While Mr. Johnson apparently did file such a complaint, he did so only after his employment with Coastal Health was terminated by his own resignation. Petitioner was not a target of the investigation and was only interviewed in connection with Mr. Johnson?s sexual harassment complaint. However, during the investigatory interviews, Petitioner was identified by other employees as engaging in inappropriate behavior, gossiping and “stirring the pot” among other employees. Petitioner?s Behavior Petitioner admitted to having repeated gossip about other employees in June 2011. The gossip related to LaTonya Graham, who had previously worked with Petitioner in Wounds and Restorative. While the testimony on the specific gossip was mostly hearsay, it is clear that Ms. Graham had a relationship with a male employee at the facility that was disruptive and created tension between Petitioner and Ms. Graham. Petitioner complained that Ms. Graham and her boyfriend at the time, Freddy Sampson, would fight in the parking lot – usually about him paying attention to other females at the facility, including Petitioner. At some point, Mr. Sampson?s relationship with Ms. Graham ended and he took up with another employee, Wanda.2/ The testimony was not dispositive of who first initiated gossip about Ms. Graham, whether Petitioner; Mr. Sampson, the ex-boyfriend; or Wanda, the new girlfriend; but that is irrelevant. Petitioner admitted to participating in and repeating gossip regarding Ms. Graham. Ms. Carroll testified that unprofessional workplace behavior was pervasive at the facility when she began as Administrator on August 9, 2010. In July 2011, all employees were ordered to attend a mandatory in-service training on appropriate workplace behavior.3/ Petitioner testified that she refrained from additional gossip after the July 2011, in-service training. Post-Investigation Actions Following investigation, Coastal Health management concluded that Ms. Clark did engage in inappropriate behavior with Mr. Johnson; however, they found that Ms. Clark?s behavior was not unwelcome and she did not harass Mr. Johnson. Ms. Carroll described Mr. Johnson and Ms. Clark as having a “consensual” relationship. After the investigation, Ms. Carroll instructed Ms. Clark and Mr. Johnson to stay away from each other. At the conclusion of the investigation Ms. Teater made the decision to discipline Petitioner, Ms. Clark, and Mr. Johnson. According to the Coastal Health Human Resources Policies and Procedures Manual, disciplinary action may be imposed for both Category I and Category II offenses. Petitioner was cited for Category I, no. 11 – “conduct that would be widely regarded as improper or inappropriate in a work group (to include, but not limited to resident abuse or neglect) or serious violations of Corporate Compliance Policies and Privacy Rule Policies.” Petitioner and Ms. Clark were both cited for “inappropriate behavior in the workplace” and received a disciplinary counseling. Category I offenses may subject the employee to discharge, but Ms. Teater exercised her discretion in this case to enter a written counseling rather than discharge, or even suspend, both employees. The record is silent as to discipline received by Mr. Johnson. In addition to written discipline, the company further disciplined Ms. Clark by removing her as “culture coordinator” at the facility. With regard to written discipline, company policy GCHC 701, Disciplinary Action, provides: An associate memorandum is to be used for progressive discipline. On each occurrence, it should be noted: The violation number; and The event which will next take place should further policy violation occur. The associate?s immediate supervisor should explain in full the reason for the disciplinary action. The associate may respond in writing if he/she so desires on the associate memorandum. The associate is to sign the memorandum to acknowledge that he/she has seen it. It does not imply agreement. The associate may comment in writing if desired. If the associate refuses to sign the memorandum, the supervisor should have a manager witness that the associate refused to sign. The associate will receive a copy of the memorandum. All disciplinary actions that have reached their anniversary date should be pulled from the personnel files and kept in an alphabetical file for the time period regarding retention of the personnel files. Gulf Coast Health Care reserves the right, in its sole discretion, to vary from these policies and take disciplinary action without any written warnings. On August 24, 2011, Petitioner was called into Ms. Carroll?s office and given a disciplinary counseling. The associate memorandum cites her for violation number 11, Category I, “inappropriate behavior.” The memorandum explained that Petitioner was identified by other employees during interviews as having made inappropriate comments, that such behavior was unacceptable practice for a supervisor, and that any future occurrences would result in further disciplinary action, up to and including termination. Petitioner responded in writing on the associate memorandum, consistent with Policy 701. She denied having had any inappropriate conversation with anyone at the facility. Also on August 24, 2011, all employees were required to attend an in-service training on harassment in the workplace. Each employee was given a copy of company policy 704, Sexual and Other Unlawful Harassment Policy Statement. Petitioner acknowledged receipt of the policy by her signature dated August 24, 2011. During the August 24, 2011, in-service training, all employees were also given a copy of Policy GHCH 718, Problem Resolution. Petitioner acknowledged receipt of the policy by her signature dated August 24, 2011, on the Sexual Harassment Policy statement. Policy 718 lays out the procedures for an employee to present a problem, complaint, suggestion, or question to Coastal Health and the procedures for resolving issues presented. Generally, the procedure requires the employee to take issues first to their supervisor, unless the supervisor is the problem, then “up the ladder” to successively higher managers if the problem is not resolved to the satisfaction of the employee. The policy requires the complaint or problem be reduced to writing, and sets forth specific timeframes in which actions must be taken. The policy includes a Problem Resolution form to be used by the employee. The form provides space for the written complaint or problem, as well as the written responses by each level of management, as applicable. Petitioner did not use the company?s problem resolution policy to address her problem supervising Ms. Clark or any other CNAs under her supervision. Nor did she use the company?s policy to address her concern with perceived “special treatment” of Ms. Clark based on a relationship with Ms. Carroll. Nor did Petitioner use the problem resolution policy to address Mr. Johnson?s report of sexual harassment to her. In fact, Petitioner never followed the company?s Problem Resolution policy and, at hearing, denied knowledge of any such policy. Michael Militello, Director of Nursing, made the decision to suspend Petitioner pending an investigation into additional complaints of her unprofessional conduct reported after the August 24, 2011, written counseling. On September 16, 2011, Mr. Militello and Heather Jackson, Risk Manager, telephoned the Petitioner to notify her of her suspension. They were unable to reach Petitioner and left a message on her voicemail to please call the facility. Petitioner returned the telephone call the same day and spoke to Ms. Jackson, who informed Petitioner of her suspension. Shortly after her first conversation with Ms. Jackson, Petitioner called the facility again and inquired into the basis of her suspension. She spoke with Ms. Jackson, who reported that Petitioner was being disciplined for violation number 11, Category I, “inappropriate conduct.” On September 26, 2011, Ms. Carroll left a message on Petitioner?s answering machine asking Petitioner to come to the facility to meet with Ms. Teeter from Coastal Health, but did not state what the meeting was about. Petitioner submitted her resignation letter to Ms. Carroll and Mr. Militello on September 27, 2011. She testified that she assumed she was being fired and did not want that on her resume. Petitioner resigned before Coastal Health completed its investigation into the allegations of additional inappropriate behavior. ULTIMATE FINDINGS Petitioner was disciplined twice by her employer, Coastal Health, receiving a written counseling on August 24, 2011, and a suspension on September 16, 2011. Petitioner did engage in unprofessional behavior, at least in June 2011, by her own admission. At the final hearing, Petitioner expressed disbelief that her discipline on August 24, 2011, could be for actions taken in July 2011, and argued that the “write-up” must have been based on her cooperation in the investigation the preceding day. However, there is no evidence that the company was prohibited from delaying discipline. Indeed, it appears that the employer only gained specific knowledge of the behavior after the investigation in August. There appears to be no causal link between Petitioner?s participation in the investigation into Mr. Johnson?s sexual harassment claim and Petitioner?s discipline. While the two occurred only one day apart, other employees were also disciplined, including the alleged harasser. If Ms. Carroll had some special relationship with Ms. Clark by which she received special treatment, it was not demonstrated at final hearing. On the contrary, Ms. Clark received the same, if not greater, discipline as Petitioner. The second discipline, suspension on September 16, 2011, was based on reports of Petitioner?s continued unprofessional behavior. Petitioner?s resignation on September 27, 2011, occurred before Coastal Health completed its investigation into the reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner?s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of November, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 26th day of November, 2012.
The Issue Due to the pre-trial motion(s), the present issue is whether or not the Division of Administrative Hearings has jurisdiction of this cause.
Findings Of Fact This cause was initiated by Petitioner's complaint of "age" and "sex" discrimination filed with the Florida Commission on Human Relations on or about May 22, 1996. Petitioner (then-complainant) was a female corporal in the bailiff's unit of the Bay County Sheriff's Office. She complained of a hostile work environment. On July 28, 1999, the Florida Commission on Human Relations, by its Executive Director, entered a "Determination: No Cause" Order. Therein, the Commission found: Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, and the timeliness and all jurisdictional requirements have been met. Pursuant to Rule 60Y-5.004(1), Florida Administrative Code, an Investigatory Report has been submitted by the office of Employment Investigations. On the basis of the report and recommendation, pursuant to the authority delegated to me by Rules 60Y-2.004(2)(e) and 60Y-5.004, Florida Administrative Code, it is my determination that there is no reasonable cause to believe that an unlawful practice has occurred. Thereafter, Petitioner's "Petition for Relief" was filed with the Commission. The date of filing is not apparent from the materials provided to the Division, so it is not possible to determine therefrom if the Petition for Relief was timely filed within 35 days of July 28, 1999, as required by law. However, the Commission did not give notice of the Petition to Respondent nor transmit it to the Division until September 24, 1999. Petitioner's Petition for Relief alleges discrimination against Petitioner on the basis of "gender" (female), "age," and "retaliation" on the basis of a hostile work environment. On the face of the Petition, it is not possible to determine if the added claim of retaliation is based upon an internal grievance, a prior complaint pursuant to Chapter 760, Florida Statutes, or the discrimination complaint before the Commission which gave rise to the instant Petition for Relief before the Division.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein for lack of jurisdiction. DONE AND ENTERED this 27th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2000. COPIES FURNISHED: Linda G. Milkowitz, Esquire 2731 Blair Stone Lane Post Office Box 14922 Tallahassee, Florida 32317-4922 R. W. Evans, Esquire Powers, Quaschnick, Tischler & Evans 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building f, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
