The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Rule 33ER91-3, Florida Administrative Code, constitutes an invalid exercise of delegated authority? Whether a proposed amendment to Rule 33-6.0045(2), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding. The Petitioner is not currently eligible for minimum custody classification even if the rules at issue did not apply to the Petitioner. Nor was the Petitioner eligible for minimum custody during the period of time that the policy challenged in case number 91-6699RX was in effect or the period of time during which the Emergency Rule applied. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Emergency Rule and Rule 33-6.0045(2)(g), Florida Administrative Code. Rule 33-6.0045, Florida Administrative Code, establishes custody classifications for inmates. Custody classifications determine, among other things, the facility to which an inmate may be assigned and the degree of security an inmate is subjected to. Inmates are classified as minimum, medium, close or maximum custody, with minimum being the least restrictive and maximum being the most restrictive. The procedure to be followed in classifying each inmate is provided in Rule 33-6.0045(2), Florida Administrative Code. The Emergency Rule and the Proposed Rule amend Rule 33-6.0045(2), Florida Administrative Code, by adding three paragraphs, including the following pertinent paragraph challenged by the Petitioner: (g) Any inmate who has been certified as a mentally disordered sex offender pursuant to ch. 917, FS shall not be assigned to minimum custody status unless they have successfully completed the mentally disordered sex offender program. The Emergency Rule and the proposed amendment to Rule 33-6.0045, Florida Administrative Code (hereinafter referred to as the "Proposed Rule"), include the same substantive amendments to Rule 33-6.0045, Florida Administrative Code. The Emergency Rule was only effective during part of 1991, prior to promulgating the Proposed Rule. Relevant Effect of the Emergency Rule and the Proposed Rule. Chapter 917, Florida Statutes (1975), which is titled "mentally disordered sex offenders" provided, in pertinent part, the following: 917.14 Certifying defendant for hearing.-- The court may suspend the sentence and certify a defendant for a hearing and examination in the circuit court to determine whether the person is a mentally disordered sex offender if: The person is convicted of a felony or misdemeanor for which he is currently being prosecuted, whether or not the crime is a sex offense; There is a probable cause to believe that the person is a mentally disordered sex offender; and The mental disorder has existed for at least the immediately preceding 4 months. The court may certify a person under subsection (1) on its own motion, on motion by the State Attorney, or on application by affidavit of the defendant. A "mentally disordered sex offender" is defined in Section 917.13, Florida Statutes (1975), as follows: "Mentally disordered sex offender" means a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses. Any person determined to be a mentally disordered sex offender was to be committed "to the custody of the Department of Offender Rehabilitation for care, treatment, and rehabilitation." Section 917.19, Florida Statutes (1975). The definition of a "mentally disordered sex offender" was modified in 1977. Pursuant to Section 917.13, Florida Statutes (1977), a "mentally disordered sex offender" was defined as follows: A "mentally disordered sex offender" or "offender is a person who: Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution; Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and Is likely to commit further sex offenses if permitted to remain at liberty. Subsequent to 1977, the classification of an offender as a mentally disordered sex offender was repealed. Pursuant to the Emergency Rule and the Proposed Rule, any person who has been determined to be a mentally disordered sex offender who has NOT successfully completed the mentally disordered sex offender program may not be classified as minimum custody. The Statutory Authority for the Emergency Rule and the Proposed Rule. The specific authority for the Emergency Rule and the Proposed Rule is Sections 20.315, 944.09 and 958.11, Florida Statutes. The specific laws implemented by the Emergency Rule and the Proposed Rule is Sections 20.315, 921.20, 944.09 and 958.11, Florida Statutes. The Respondent intends to add by technical amendment the following additional statutory authority for the Emergency Rule and the Proposed Rule: Sections 944.17 and 944.1905, Florida Statutes. The Rationale for the Emergency Rule and the Proposed Rule. The immediate danger to the public health, safety and welfare which the Respondent indicated justified promulgating the Emergency Rule pursuant to Section 120.54(9), Florida Statutes, was set out in the Notice of Emergency Rulemaking: The rule is necessary in order to prevent convicted sex offenders, inmates certified as mentally disordered sex offenders, and aliens who are subject to deportation from being assigned minimum custody status. The department's current classification policy permits the classification of minimum custody for these inmates who, by their nature, present an extraordinary threat to public safety should they escape, or, in the case of aliens, present an inordinate escape risk because of the threat to deportation. The sex offenders being addressed are those who are or have been previously convicted of sex offenses listed in s.944.277(1), which are those sex offenses which exclude inmates from awards of provisional credits, and therefore identify them as a category of offenders who present a threat to public safety. The rule also addresses those persons certified as mentally disordered sex offenders under ch. 917 FS, who are considered dangerous to others because of a propensity to commit sex offenses. Experience has shown that one of the categories of inmates that are the greatest risk of escape are those subject to deportation, which in certain cases, would subject them to severe penalties in their native countries. Without an emergency rule, these categories of offenders could be reduced to minimum custody and permitted placement on public work squads or other outside work assignments with little or no supervision. The emergency rule presents a mechanism to ensure that these inmates are retained in a secure perimeter or under direct supervision. Although the Notice of Emergency Rulemaking indicates that there are only two inmates who are classified as mentally disordered sex offenders under Chapter 917, Florida Statutes, there may be more. The number referenced in the Notice does not include former inmates who have been released, with or without further supervision, who may commit offenses in the future which could result in their return to prison. Additionally, it is possible that Chapter 917, Florida Statutes, or a similar statute, could be enacted in the future resulting in the classification of additional inmates as mentally disordered sex offenders. In fact, Chapter 917, Florida Statutes, has been repealed and then reenacted in the past. Even if there are only two inmates classified as mentally disordered sex offenders, the evidence failed to prove that the potential threat from a single inmate classified as a mentally disordered sex offender is not sufficient justification for the Emergency Rule and the Proposed Rule. Although the Respondent was aware at the time of promulgating the challenged rules that the Emergency Rule and the Proposed Rule would apply to the Petitioner, who is one of the inmates currently in prison who is classified as a mentally disordered sex offender, the weight of the evidence failed to prove that the Respondent was "out to get the Petitioner." The Petitioner failed to prove that the Petitioner adopted the Emergency Rule or the Proposed Rule only because they apply to the Petitioner. The purpose for promulgating the Emergency Rule and the Proposed Rule was to protect the public. By the very definition of a mentally disordered sex offender under Chapter 917, Florida Statutes, persons determined to be mentally disordered sex offenders are considered likely to constitute a continuing threat. Pursuant to the definition of a mentally disordered sex offender contained in the 1975 statutes, such a person "is considered dangerous to others because of a propensity to commit sex offenses." Section 917.13, Florida Statutes (1975). As defined in the 1977 statutes, such a person "[i]s likely to commit further sex offenses if permitted to remain at liberty." Section 917.13(1)(c), Florida Statutes (1977). Persons classified as minimum custody are subject to less security. They may be placed on work programs which take them out of the institution. Allowing a person who has been determined by the courts of Florida to be likely to commit further sex offenses or to have a propensity to commit sex offenses and who have not completed programs intended to correct such tendencies, has the potential of placing the public at unnecessary risk. The Impact of the Emergency Rule and the Proposed Rule on the Petitioner and the Petitioner's Challenge. The Petitioner was charged with, and convicted of, first degree murder in 1975. He was sentenced to life imprisonment and was required to serve a minimum of 25 years. The Petitioner was not charged with any sex offense. Subsequent to the Petitioner's conviction, his defense attorney suggested that the Petitioner request that he be classified as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1975). The Petitioner did in fact request that he be classified as a mentally disordered sex offender. Pursuant to Section 917.14(2), Florida Statutes (1975), such a request was required to be made by "affidavit of the defendant." The Petitioner's request to be classified as a mentally disordered sex offender was granted on December 19, 1975, by then Circuit Court Judge Charles Scruggs, III. There was no requirement that a person classified as a mentally disordered sex offender in 1975 actually be convicted of having committed a sex offense. There was, however, a requirement that the sentencing judge determine that the person being classified as a mentally disordered sex offender: Have a mental disorder; and Be considered dangerous to others because of a propensity to commit sex offenses. It was not necessary under Chapter 917, Florida Statutes (1975), that it be shown that the person ever actually committed a sex offense. It was only necessary that the person show a propensity or inclination to commit a sex offense in the future. On April 1, 1976, the Petitioner was transferred from a correctional institution to the state mental hospital in Chattahoochee, Florida. In March, 1980, the Petitioner was resentenced and returned to a correctional institution. Judge Scruggs recommended that the Petitioner be placed in minimum custody. The Petitioner is currently classified as medium custody. Even without the Emergency Rule or the Proposed Rule, the Petitioner has not been eligible for classification as minimum custody. Nor is the Petitioner currently eligible for minimum custody. Should the Petitioner, who has had no disciplinary reports during his seventeen years incarceration by the Respondent, otherwise become eligible for minimum custody in the future, he will not be so classified because of the Proposed Rule. In light of the fact that the Petitioner was not eligible for minimum custody during the period of time that the Emergency Rule was effective, the Emergency Rule had no impact on the Petitioner and he lacks standing to challenge the Emergency Rule. The Petitioner failed to prove that he has successfully completed the mentally disordered sex offender program. The Petitioner was involved in a sex offense committed against him when he was a child. Pursuant to the Emergency Rule and the Proposed Rule the Petitioner will not be eligible for minimum custody because he was classified as a mentally disordered sex offender and has apparently not successfully completed the mentally disordered sex offender. Nor can the Petitioner successfully complete the program since it is no longer provided. The Petitioner has alleged that the Emergency Rule and the Proposed Rule are invalid because they are arbitrary and capricious. The Petitioner has also alleged that the Emergency Rule is invalid because no emergency existed when it was promulgated.
The Issue Whether respondent's licence as a medical doctor should be disciplined on charges that he: (1) was convicted in a foreign country of a crime relating to the practice of medicine, (2) obtained his license to practice medicine by fraud or deceitful misrepresentation, (3) had his license acted against by the licensing authority of another state, (4) made misleading, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, (5) engaged in unethical, deceptive, or deleterious conduct harmful to the public, (6) failed to prescribe controlled substances in good faith and in the course of his medical practice, and (7) engaged in immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, all in violation of Section 458.1201, Florida Statutes (1973), and Section 458.331, Florida Statutes (1981).
Findings Of Fact Count I: Conviction of a Crime Relating to the Practice of Medicine In 1960, respondent was a first-year medical student at Fribourg University in Switzerland. On May 11, 1960, he was tried and convicted by the Criminal Court of Sarine in Fribourg, Switzerland, of the crimes of "attempted abortion committed by a third person, attempted abortion on an unsuitable object by a third person, and violation of the law regarding the health regulations." He was sentenced to a ten-month prison term, minus the time of detention served while awaiting trial, with a suspended execution of sentence during five years. Respondent was also fined 500 Swiss francs, deported from Switzerland, and barred from reentry for a period of fifteen years. (Testimony of Gordon, Alonso; P-3.) II. Count II: Obtaining Florida Medical License by Fraud or Misrepresentation On December 17, 1971, respondent filed with the Florida State Board of Medical Examiners a sworn application for examination and licensure as a medical doctor in the State of Florida. On his application, he responded in the negative to questions asking whether he had ever been convicted of a felony or a misdemeanor. The application also contained the following statement, in bold type, above the signature line of the applicant: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I fur- nish any false information in this applica- tion, I hereby agree that such act shall constitute cause for the denial, suspension, or revocation of my license to practice medicine and surgery in the State of Florida. (P-2.) On August 30, 1972, based on his application and passage of the examination, the Board of Medical Examiners issued respondent a license (license No. 24291) to practice medicine and surgery in Florida. (Testimony of Gordon; P-2.) Respondent explains his failure to reveal his Switzerland conviction on his application as a "peccadillo." (Tr. 245.) Since the New Jersey Medical Board records (where he was previously licensed) reflected his Switzerland conviction, he testified that he felt the New Jersey board would have notified the Florida board of the conviction. (Tr. 245-246.)(Testimony of Gordon.) By 1974, within two years after he was licensed in Florida, the Department became aware of his criminal conviction in Switzerland. In 1973 or 1974, soon after respondent opened his medical practice in North Miami Beach, a Department investigator, A. J. Stack, told him that the Department knew of his criminal conviction in Switzerland. (Testimony' of Gordon; R-2.) III. Count III: New Jersey's Action Against Respondent's Medical License On September 29, 1972, the New Jersey Board of Medical Examiners issued an administrative complaint seeking to suspend or revoke respondent's New Jersey medical and surgical license on charges he sexually assaulted two female patients and dispensed amphetamines to two other patients without good medical cause. One month later, the New Jersey board supplemented its complaint by adding two additional charges: (1) that he was convicted as an abortionist in Switzerland in May, 1960, and (2) that he failed to complete Section 12 of the application (i.e., disclose the Switzerland conviction), thereby obtaining his New Jersey medical license by fraud. (P-4, R-2.) On December 11, 1972, the New Jersey Department of Health suspended, for an indefinite period, respondent's New Jersey controlled substance registration. The suspension order states that, after being notified by certified mail, respondent failed to appear before the Department and show cause why his registration should not be suspended. No other reason is given for the suspension action. Respondent now asserts that the Department of Health did not notify him of its action to suspend his controlled substance registration. (Tr. 251-252.)(Testimony of Gordon; P-4.) The charges brought against respondent by the New Jersey Board of Medical Examiners were never adjudicated on their merits. On February 27, 1973, he resigned from the practice of medicine in New Jersey and surrendered his New Jersey medical license to the Board of Medical Examiners. (Testimony of Gordon; P-4, R-2.) When the New Jersey Board of Medical Examiners brought its charges against respondent, he had already obtained his Florida medical license. The Florida board of Medical Examiners learned of the New Jersey charges and respondent's resignation in May, 1973. In February, 1974, the board's counsel advised that "there is really nothing we can do unless Dr. Gordon violates the Florida laws." (R-2.) And, on May 15, 1974, the board's executive director made this notation in respondent's file: If he [respondent] has any trouble here in Florida we can suspend his license on the basis of the N.J. Board's action. (R-2.) IV. Counts IV, V, VI, and VII: Professional Misconduct in Treating Elizabeth Buffum Respondent began to practice medicine in Florida in 1973 at North Miami Beach, Florida. In December of that year--at the request of a third party--he went to the home of Elizabeth Buffum and treated her for alcoholism. Thereafter, he continued to treat her for chronic alcoholism. His treatment was to limit her use of alcohol and prescribe various sedatives, such as Thorazine and Sparine, which are scheduled controlled substances. In June, 1974, he and Ms. Buffum began living together; in September they were married. From December, 1973, until Ms. Buffum left him in November, 1975, respondent continuously acted as her physician and provided treatment for her alcoholism. (P-1.) Ms. Buffum was a woman of great wealth. During her marriage to respondent, she relied on respondent not only as her physician but also as her confidant and financial advisor. Extensive 9/ civil litigation which followed their broken marriage resulted in the Circuit Court of Dade County rendering a judgment in Bellman v. Gordon, Case No. 75-18967 (Fla. 11th Cir. Ct. 1979) [affirmed, Gordon v. Gordon, 386 So.2d 1326 (Fla. 3rd DCA 1980), opinion filed July 29, 1980], finding that: Edward Gordon breached this fiduciary duty [to Ms. Buffum and converted her assets to his own use and the use of his family so that nearly all of her assets were divested from her. The court ordered the return of her assets. (P-1, P-5.) In treating Ms. Buffum's alcoholism, respondent would allow her to drink limited amounts of alcohol: the thrust of his treatment program was to gradually decrease the dosages of alcohol. (Frequently, he would add water to her liquor bottles in an attempt to lessen the effects of alcohol.) He sometimes gave her an alcoholic drink to calm her, and ordinarily allowed her an alcoholic drink before evening meals. He also gave her vitamin B12 and Valium. When he thought she was having delirium tremors, he administered Thorazine. He acknowledges that, when she was in such a condition, it would have been proper to place her in the hospital, but he felt--at the time--that he could properly care for her at home. (Testimony of Gordon; P-1.) Dr. Delores Morgan, a qualified expert in family practice and alcoholism treatment, testified that respondent's medical treatment of Ms. Buffum deviated from the generally accepted and prevailing medical practice in the Miami area between 1973 and 1975. She testified Benzodiazepins (including Librium and Valium), rather than Phenathiazines (including Thorazine and Sparine) should be administered to patients suffering from alcohol withdrawal symptoms, such as delirium tremors; that such patients are medical emergencies and must be hospitalized, where their progress can be monitored and a thorough physical examination can be given, including checking eletrolyte patterns, potassium deficiencies, and chemical profiles; that, rather than decreasing doses of alcohol, treatment of alcoholism requires complete abstinence; and that if an alcoholic patient refused hospitalization, he or she should have been involuntarily hospitalized pursuant to state law. These opinions of Dr. Morgan are persuasive and are expressly adopted as findings. Respondent's contrary opinions are rejected as self-serving and uncorroborated. (Testimony of Morgan.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine and surgery in Florida be suspended for one (1) year. DONE AND RECOMMENDED this 22nd of June, 1982 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
Findings Of Fact Petitioner, Samual D. Hayes, who is black, was initially hired by respondent, Martin Marietta Data Systems, Inc. (Martin Marietta) in 1978. Martin Marietta is an employer within the meaning of Subsection 760.02(6), Florida Statutes, and has offices in Orlando, Florida. Hayes first served in the position of senior computer systems designer at a salary of $19,500 per year. He later received a promotion to senior business systems designer, then held the position of product support manager, and eventually became a manager II and head of the engineering sup- port section of the engineering and scientific systems group. In that position he was in charge of approximately twenty other persons, and was considered a part of the managerial staff of the firm. His final salary with Martin Marietta was $36,900 per year. Throughout his tenure with the firm, Hayes received good evaluations concerning the quality of his work. On August 16, 1984 Hayes was terminated from employment with Martin Marietta. He was charged with "misconduct." Underlying the charge of misconduct were allegations that Hayes has sexually harassed two female employees of the firm, and a female applicant for employment. Almost three months later he filed a complaint with the Florida Commission on Human Relations alleging that the sexual harassment charges were merely a pretext on the part of the employer, and that he was actually discharged because of his race. That prompted the instant proceeding. Martin Marietta is a division of Martin Marietta Corporation and is basically engaged in the computer service industry. It generally provides computer software packages, consulting services, data processing services, and all internal accounting for its parent corporation. At the present time it employs some 4,000 employees in the United States and some 1,200 in Great Britain. Since 1964 the firm has had a policy which prohibits discrimination based upon race, sex or ethnic backgrounds. That policy is consistent with federal guidelines. In addition, at all relevant times it had a specific company policy which required the "maintenance of a work environment free of sexual . . . harassment." This policy was incorporated into the written Corporate Policy Manual of the company and was disseminated to all managerial level employees to ensure compliance with the policy. As a manager, Hayes was familiar with this policy and the general prohibition against sexual harassment. Martin Marietta is a contractor on the list of firms qualified to bid on federal government projects. Under federal law, a government contractor is subject to having its contract cancelled, payment withheld, or to be taken off the bidding list if the firm is found guilty of sexual harassment. A contractor is also subject to liability in a civil action for sexual harrassment acts of its employees. As such, Martin Marietta was serious in its efforts to prevent sexual harassment, and to punish any employee found guilty of those charges. It demanded stricter compliance with the policies by its managerial level employees, since it was they who the firm expected to enforce company policies regarding discrimination and harassment. Helen Adams was a married female employee under the supervision of Hayes. In January, 1982 she attended a weeklong company seminar at the Gold Key Inn in Orlando. One afternoon during the seminar, Hayes telephoned her from the lobby and asked if he could come up to her room to see how she was doing. She agreed. Once there, he began talking about "intercourse," and then grabbed her and kissed her. Adams pushed him away and demanded he leave the room. About two days later Hayes apologized. However, the next time he called her into his office at work, he pushed his chair back from his desk where he was sitting, and displayed an erection through his pants. According to Adams, he continued to do this "all the time" until his discharge in August. During this same period he attempted on one occasion to put his arm around Adams, and he propositioned her on another occasion. He also cautioned her that the company's personnel officer was a close friend and it would do her no good to complain. Because of this, and the fact that she was a new employee and fearful of losing her job, she made no complaints to other company personnel. After she finally complained to another supervisor and attempted to transfer to his section, Hayes told her to "cut out the bull-shit." Adams' complaints finally surfaced in August, 1982 when other complaints were lodged against Hayes. She is now considering a law suit against Martin Marietta for Hayes' actions. Virginia Wright is a single female who worked for Martin Marietta between December, 1977 and September, 1983. She was under the direct supervision of Helen Adams, whose section Hayes managed. She was in daily contact with Hayes since her work area was immediately adjacent to Hayes' office. While working on her terminal one day in January, 1982 Hayes approached her and placed his hands on her shoulders and began massaging them. He told her he could make her "feel good" and that they should get together. When she appeared afraid, he backed away. In February she asked for a transfer but was told by Hayes they would have to get together in her apartment and talk about it. When she threatened to complain, Hayes told her she was "fat and black," and that nobody would believe her. Wright was initially reluctant to complain because she was embarrassed, because it was her word against that of a manager, and because the head of Martin Marietta EEO was a good friend of Hayes. In August, 1982 she finally voiced her complaints to personnel after she was transferred to what she considered to be a less responsible position. Just before she formally voiced her complaints, Hayes approached her and said "I know what you did, now you'll pay." Sharon Ann Sconiers (now Savage) was seeking employment with Martin Marietta. Sconiers, who was a single parent at the time, was a former college roommate of Virginia Wright, and was encouraged by Wright to contact Hayes concerning employment. The three agreed to meet at an Orlando area restaurant for lunch one day in February, 1982. At their meeting Sconiers gave Hayes her resume which also contained her unlisted telephone number. Hayes also inquired about her marital status, and was told she was a single parent. After lunch, and while assisting Sconiers to her car, Hayes told her she must be lonely and that he could help her end her lonely nights. A few days later, Hayes telephoned her at home- late one Friday afternoon. After she inquired about her job application, he advised her he was still reviewing it. He then asked her to spend the weekend with him in Lakeland where a basketball tournament was being played. She declined. On her birthday she received a card from Hayes. Sometime later, Hayes told Virginia to tell Sconiers he had lost her job application and if she still wanted a job, she would have to fill out another application. In August, Sconiers learned of other sexual harassment complaints against Hayes and revealed Hayes' advances to Martin Marietta personnel. Hayes contends that other Martin Marietta employees were guilty of misconduct, but were treated less harshly than he. Specifically, he referred to a situation involving Jim Elliott, a white manager, who was "involved" with a female employee. But in the case of Elliott, it was a voluntary "affair" between the two, and no complaints had been filed. Elliott was promptly transferred to another section when the affair was discovered. Hayes also spoke of Chris Larson, another white manager, who was allegedly involved in similar sexual harassment charges. But other than Hayes' vague allegations, and the testimony of a second employee who stated there were "rumors" concerning Hayes, there is no credible evidence that Larson did indeed commit such an offense, or that any complaints of this nature were ever filed against him. Finally, Hayes testified that there were "altercations" by unnamed managers at the Gold Key Inn on undisclosed dates and they were simply counseled for their actions. However, this allegation was not explained, corroborated or confirmed by any competent testimony. Uncontradicted testimony established that Martin Marietta did not treat Hayes differently because he was black. The company felt compelled to fire him once it learned the com- plaints of the three women were valid, especially since Hayes occupied a managerial level position and one of the charges involved a prospective employee. Moreover, the company was extremely vulnerable due to its status as a government contrac- tor. It is not the first time a Martin Marietta employee has been fired for such conduct. Indeed, a white plant manager in South Carolina with 25 years of service was discharged for simi- lar conduct in June, 1981. Some four months later, a black foreman at the same plant had no action taken after similar charges were shown to be groundless. Hayes contends that the charges against him were not properly investigated prior to his dismissal, that the three women conspired against him collectively, and suggests that the written statements against him by Adams, Wright and Sconiers were solicited only after he had already been fired. But the evidence reveals that the EEO officer (Ben Morrall, Jr.) in the aerospace division of Martin Marietta first learned of the alleged misconduct by Hayes through Wright and the husband of Adams around June or July of 1982. This information was conveyed to Hayes' affirmative action officer who informed Hayes of the allegations. When Morrall's request for an investigation of the charges went unheeded, Morrall telephoned corporate headquarters in Bethesda, Maryland. Headquarters then initiated an appropriate investigation which included interviews with the three women. It then became a matter of whether the company believed the three complaining witnesses, or Hayes. Accepting the women's stories as being true, the company made the decision to fire Hayes, and not offer him severance pay or a lateral transfer to another position elsewhere. Notes of these interviews were compiled and reviewed prior to this decision. The substance of the interviews was memorialized in notarized statements after Hayes filed his complaint with the Commission. The undersigned has found no evidence to support the "conspiracy" theory as suggested by Hayes, and instead finds the testimony of the three women to be credible. The undersigned also finds that Hayes' race (black) did not enter into or affect in any way the decision of the company to terminate the employee.
Conclusions The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. Subsection 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer "[t]o discharge . . . any individual . . . because of such individual's race." To establish an unlawful employment practice, the burden of proof rests upon the discharged employee to present by competent and substantial evidence a prima facie case that such a practice has occurred. If such a case has been presented, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for discharging that employee. If this burden is met, the employee must then prove that the stated reason for discharge is a mere pretext, and that discrimination was the real motive. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Hayes met his initial burden through evidence, which standing alone, established a prima facie case that he is black, that he was discharged from his employment with respondent, and that similarly situated non-black males were allegedly not so adversely treated. However, respondent has successfully countered those allegations by a greater weight of the evidence that Hayes was discharged for a legitimate, nondiscriminatory reason, sexual harrassment, and that there was no racially motivated reason for his termination. At the same time, it has dispelled the suggestion of Hayes that the employer treated Hayes less favorably than others merely because of his race. The evidence shows that the company fired a white manager for identical reasons to those used to fire Hayes, and a black foreman was not fired when similar charges proved groundless. Hayes' contentions regarding other inappropriate acts of Martin Marietta employees were either unsupported by the evidence, or were clearly distinguishable in severity from the offenses for which he was charged. Therefore, it is concluded that no "disparate treatment" occurred within the meaning of that term. There being a legitimate, nondiscriminatory reason for Hayes' firing articulated by the employer, and there being a lack of credible evidence to show that the proffered reason was a mere pretext, Hayes' complaint should be dismissed with prejudice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief be DISMISSED with prejudice. DONE and ORDERED this 13th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1986. COPIES FURNISHED: Harry L. Lamb, Esquire 621 N. Fern CreeX Ave. Orlando, Florida 32803 Thomas C. Garwood, Jr., Esquire Christine M. Alber, Esquire 57 W. Pine St., Suite 202 Orlando, Florida 32801 Dana Baird, Esquire Fla. Comm. on Human Relations Bldg. F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 APPENDIX PETITIONER Covered in finding of fact 1. Covered in finding of fact 1. Rejected as being unnecessary. Covered in finding of fact 10. Rejected as being unnecessary. Rejected as being unnecessary. Rejected as being contrary to the evidence. Partially rejected and partially covered in finding of fact 10. Rejected as being contrary to the evidence. Covered in finding of fact 8. Covered in finding of fact 11. A portion of this finding is covered in finding of fact 8 and a portion has been rejected as being irrelevant. Rejected as being contrary to the evidence. Rejected as being contrary to the evidence. Partially covered in finding of fact 1. RESPONDENT: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 10. Covered in finding of fact 10. Covered in finding of fact 10. Covered in findings of fact 5 and 10. Covered in findings of fact 6 and 10. Covered in findings of fact 7 and 10. Covered in finding of fact 10.
