The Issue Whether the Respondent's motion to dismiss should be granted.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination based on marital status and recognizing Petitioner has elected to bring a civil action in federal court which is a court of competent jurisdiction to resolve all other claims against this Respondent. DONE AND ENTERED this 10th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 January, 1996. COPIES FURNISHED: Jonathan D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive Naples, Florida 33490 Steve J. Longariello, pro se 9999 Summerbreeze Drive Apartment 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent discriminated against Petitioner on the basis of marital status or sex.
Findings Of Fact In August, 1992, two special learning disabilities (SLD) teaching positions were available at Key Largo Elementary School. Petitioner, Steve J. Longariello (Longariello), a single male, applied for a SLD position with the Monroe County School Board. At the time he applied, Longariello was certified to teach a SLD class. In addition to Longariello, twelve other candidates, including five men, applied for the two available SLD teaching positions at Key Largo Elementary School. On August 7, 1992, Longariello interviewed for a SLD position at Key Largo Elementary School. The interview was conducted by the principal of the school, Frances McCormick-St. James, and Annette Hall. At the time of the interview Ms. McCormick-St. James was unmarried. The interview lasted approximately 20 to 25 minutes. No questions were asked concerning Longariello's marital status, and Longariello did not volunteer any information concerning his marital status. The application did not indicate Longariello's marital status. Longariello has no information available to him to make him believe that either Ms. McCormick-St. James or Ms. Hall was aware of his marital status at the time of the interview. No evidence has been presented to show that either Ms. McCormick-St. James or Ms. Hall knew that Longariello was single. Longariello recalls that during the interview that Ms. McCormick-St. James had two statues on her desk with comments concerning men on the statues. He does not recall what the comments were or what the statues looked like. Neither Ms. Hall nor Ms. McCormick-St. James asked him any questions which he considered offensive based on gender. A couple of days after the interview, Longariello called the school and was told that the position had been filled. The position was filled by a married female, Katherine Walker. The parties have stipulated that Ms. Walker was as qualified as Longariello. Gregory Kickasola, a single male, submitted an application dated September 4, 1992 to Key Largo Elementary School. He was hired for one of the SLD teaching positions for which Longariello applied. During the 1992-1993 school year, Longariello called the Monroe County School Board to see if any positions were available. He considered his telephoning to be equivalent to applying for whatever positions were available at the time. In November, 1993, Longariello was offered a teaching position by the Monroe County School Board at Marathon High School. It was a seven-month position. Longariello declined the position because he felt that it would cost him too much money to take the position and not be assured of being rehired the following year. There were no guarantees for a rehire for the next year for any position for which Longariello could have applied. Longariello did not renew his teaching certificate with the State of Florida in October, 1993, and presently does not have a teaching certificate. For the 1991-1992 school year, Monroe County School Board hired 30 single teachers and 33 married teachers. Of the single teachers, nine were male. Of the married teachers, 5 were male. During the same school year, six single teachers and five married teachers were hired at Key Largo Elementary. Two of the single teachers were male and two of the married teachers were male. For the 1992-1993 school year, Monroe County School Board hired 45 single teachers and 55 married teachers. Fourteen of the single teachers were male and nine of the married teachers were male. During the same school year, six single teachers and twelve married teachers were hired at Key Largo Elementary. One of the single teachers was male and one of the married teachers was male. For the 1993-1994 school year, Monroe County School Board hired 55 single teachers and 49 married teachers. Twenty-five of the single teachers were male and 7 of the married teachers were male. During the same school year, 8 single teachers and 6 married teachers were hired at Key Largo Elementary. Six of the single teachers were male and none of the married teachers were male. At the beginning of the 92-93 school year, the total number of instructional staff in Florida public schools consisted of 92,402 females and 26,467 males. Thus, 22.27 percent of the total instructional staff were male. At the beginning of the 93-94 school year, the total number of instructional staff in Florida public schools (excluding Monroe County) 1/ consisted of 96,010 females and 27,512 males. Thus, 22.27 percent of the total instructional staff, excluding Monroe County, were male. At the beginning of the 94-95 school year, the total number of instructional staff in Florida public schools consisted of 100,346 females and 28,883 males. Thus, 22.35 percent of the total instructional staff were male. On July 8, 1993, Longariello filed a complaint with the Florida Commission on Human Relations, alleging that Respondent had discriminated against him on the basis of sex and marital status. On August 8, 1993, Longariello filed complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging Respondent discriminated against him based on sex and marital status. On May 23, 1995, the EEOC issued a Letter of Determination, stating that the investigation failed to reveal evidence which would support a case of discrimination based either on sex or marital status. Longariello was advised that he could file suit against the Respondent in Federal District Court within 90 days of the receipt of the Letter of Determination. On August 4, 1995, Longariello wrote to the Commission and requested an administrative hearing on his complaint. In his letter to the Commission, Longariello stated: To date, I have not received a registered letter that would indicate a determination has been made. From what I understand of Title XLIV, Civil Rights, Chapter 760, I can proceed in one of two ways: (1) Bring Civil Action, or (2) Request an Administrative Hearing under Section 120.57. * * * Because a EEOC investigation has found no violation of T. VII, the main focus of this hearing should be MARITAL STATUS DISCRIMINATION. This is because marital status is not a protected class under T. VII. If I decide to proceed with my sex discrimination claims in Federal District Court, it may not be necessary to pursue sex disc. at the State level. On August 17, 1995, Longariello filed a civil action in the United States District Court for the Southern District of Florida against Respondents alleging sex discrimination based on the same facts which are the subject of this administrative proceeding. Steve J. Longariello v. School Board of Monroe County, Florida, Monroe County Public Schools, Case No. 95-10055.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Longariello's claims for discrimination based on sex and marital status against Monroe County Public Schools, Florida. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.
The Issue The issue for determination in this proceeding is whether the Respondents violated Section 475.25(1)(b), Florida Statutes, by inducing a seller to enter in a contract for sale of real estate, based on a $50,000.00 earnest money deposit that was never made.
Findings Of Fact Respondent Fred Marberry, Jr. is now and was at all times material hereto a licensed real estate broker-salesman in the State of Florida, having been issued license number 0369879 in accordance with Chapter 475, Florida Statutes. Respondent Bernon Earl Thomas is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 0433736 in accordance with Chapter 475, Florida Statutes. During the relevant time, from July through September 1985, Fred Marberry was President of Marberry and Mack Development, Inc., and maintained an office in Altamonte Springs, Florida. James Mack was the Vice-president, Secretary and Treasurer of the company. During the relevant time, from July through September 1985, Bernon Thomas was a real estate salesman with General Realty Management Corporation. His office was in Kissimmee, Florida. In 1985, the two Respondents had worked together on the potential sale and development of a multi-family project in Kissimmee. Thomas was aware of the availability of some commercial property in Kissimmee known as Cross Creek that he felt would be a good deal and shared that information with Marberry. Thomas got his information on Cross Creek from Larry Heninger, who was working with the owner, R. S. Futch, in putting together a development package to present to potential buyers and developers. Heninger had expended considerable effort in working with an engineer and permit agencies and had made contacts with a number of businesses interested in locating on the property. The engineering reports, correspondence and figures supplied to Marberry by Thomas indicated that the parcel comprised 14.75 usable acres. There were letters from the City saying that sewage capacity, utilities and similar public services would be based on this amount. Marberry told Thomas that the development package looked good and to continue working on it. Some time in mid-July 1985, Larry Heninger informed Thomas that some third parties were also interested in the Cross Creek property and that if Marberry and Mack, Inc., wanted to present an offer, they would need to do so immediately as Mr. Futch was leaving on a vacation for several weeks. Thomas called Marberry to relay this information. The details of the conversation are in dispute, but it is uncontroverted that Thomas was made a Vice-president of Marberry and Mack, Inc., for the sole purpose of executing a sales contract immediately. Arrangements were made for Thomas to draw up the contract/offer and have it taken to the Orlando airport where R. S. Futch was either leaving or was en route on his vacation. Marberry and Thomas disagree on what was discussed with regard to an escrow deposit. Thomas contends that Marberry authorized him to provide for a $50,000.00 escrow deposit to be held by Fred Marberry, licensed real estate broker upon acceptance of contract. Marberry denies this and claims that he never maintained an escrow account, that escrow funds were always handled by his (Marberry's) attorney. Marberry claims that the day after signing, when he actually saw the contract, he said something to Thomas about his failure to delete the escrow language on the contract form. Thomas denies this. Both Marberry and Thomas agree that all parties should have known that the deposit could not be escrowed upon acceptance, since Marberry was not there for the signing. The contract was prepared and signed by Thomas in Thomas' Kissimmee office and was taken to the Orlando airport. The contract, prepared on the standard Florida Bar and Association of Realtors approved form, provided a purchase price of $1,600,000.00, the $50,000.00 escrow deposit, and closing on August 25, 1985. The contract provided that closing could be extended by the buyer for 30 days with an additional $50,000.00 deposit. The contract contained the following special clauses: Contingent upon financing. Above described property of [sic] being viable to building Comm. Prop. with all necessary zoning and available utilities. [Pet. Ex. #5] At the airport, R. S. Futch accepted the offer by Marberry and Mack, made a few changes on the contract, initialled them and signed the contract; the changes were also initialled by Bernon Thomas. Later Thomas called Marberry and told him about the changes. The morning after the contract was signed, Marberry and Thomas visited Heninger's engineer to review the project. They reviewed the engineering plans and learned that the property was in a floodplain. Drainage was a problem and parking was a problem and it appeared that only 4.3 acres was actually buildable. On leaving the engineer's office Marberry told Thomas that there was no way the project could work; they could never get financing for a $1.6 million parcel of 14.75 acres, with only 4.3 buildable acres. Marberry felt the contingencies in the contract could not be met and the contract was off. Thomas still believed in the project, and since he had already put so much time and effort in it, he wanted to keep working on pulling it together. Marberry did not dissuade him, but said only to keep him informed on what was going on. Thomas told Heninger that Marberry didn't want the contract. Heninger said he wanted the contract to stay intact and encouraged Thomas to keep working on it. He also tried to get Thomas to do the deal himself, but Thomas told him he did not have the funds. Thomas claims that Heninger told him not to worry about the $50,000.00; Heninger denies this. Nothing was communicated in writing regarding the contract being terminated. The $50,000.00 deposit was never made. The deadline for closing passed, and sometime in September 1985, Larry Heninger arranged a meeting between R. S. Futch and Fred Marberry in a motel in Orlando. The purpose of the meeting was to either extend the contract entered in July (according to R. S. Futch), or to negotiate a new contract for the property (according to Fred Marberry). During the meeting Futch was told that no $50,000.00 deposit had been made on the original contract. The meeting apparently terminated and shortly later Futch filed suit for the $50,000.00. The testimony of the principal witnesses in this case: Marberry, Thomas, Futch and Heninger, establish a picture of lack of communication, misunderstanding, bungling, and unprofessionalism. It is impossible to determine from the rambling and disjointed stories of these witnesses, that either Fred Marberry or Bernon Thomas, individually or together, engaged in "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust..."
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Administrative Complaint against both Fred Marberry and Bernon Thomas, be dismissed. DONE and ORDERED this 11th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert D. Gatton, Esquire Maitland Center 1051 Winderley Place Maitland, Florida 32751 Bernon Earl Thomas 4226 Match Point Drive Augusta, Georgia 30909 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact On January 29, 1979, Snyder applied with the Department for eligibility for licensure as a general lines agent. The application was received by the Department on February 2, 1979. The Department requested additional information concerning that application from Snyder on February 12, 1979, which information was received by the Department on February 26, 1979. The Department made timely denial of the application by letter dated May 11, 1979, which letter was received by Snyder on or about May 16, 1979. On December 29, 1972, Snyder was convicted of grand larceny in Manatee County, Florida, a felony involving moral turpitude. Snyder was placed on probation for three (3) years with one of the conditions of probation being full restitution of the stolen funds. Snyder's probation was terminated on January 13, 1975, after compliance with the conditions of probation, and her civil rights were restored on June 18, 1975. In 1970, Snyder was married for the first time. In February, 1976, she was divorced. Until three weeks before this hearing, Snyder's ex-husband was in prison in Florida for murder and armed robbery, at which time he escaped. During the course of this marriage Snyder's husband refused to work but continued to incur debts and to exert usually strong influence on his wife, the Petitioner in this case. In 1972, when she was nineteen, Snyder, out of desperation and concern for her family and as a result of intensive pressure from her husband, stole $500 from her employer the City of Bradenton in 1972. Snyder was charged with the crime, plead guilty and subsequently made full restitution and paid an additional fine. Snyder worked as an office manager for an insurance agent in Palmetto, Florida, for a year, subsequent to her job with the City of Bradenton, then worked as a secretary underwriter for T.C.I. Insurance Company and as a waitress in Orlando, where in both jobs she handled a good deal of money without incident. While a student at the University of Central Florida, Snyder was elected to the student finance committee. Snyder finished first in her class when taking the 240 hour course required by the State for licensure as a general lines agent. Snyder attained her general lines agent license in California and until recently worked for Metropolitan Insurance Company where she had an outstanding employment record. The evidence and the demeanor of the witness indicate and it is concluded as a matter of fact that her prior criminal record was a product of an unusual situation and does not reflect upon the present honesty or reliability of Snyder.
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact 1. Petitioner (Randolph) is an African-American female. 2. Petitioner was hired by Respondent on June 2, 1997, and was terminated by Respondent from her employment on September 30, 1997. 3. When initially hired, Petitioner’s official employment class title was Other Personnel Services (OPS) Paralegal Specialist. 4. On July 1, 1997, approximately one month after her date of employment, Petitioner’s official employment class title was changed to Administrative Secretary and Petitioner’s pay plan status was changed from OPS to Career Service. 5. On September 1, 1997, Petitioner's class title was reclassified to Paralegal Specialist. 6. From July 1, 1997, until the date of her termination, Petitioner was employed in a probationary status by DOAH with her primary job responsibilities being that of a proofreader. 7. Probationary employees are not entitled to progressive discipline and can be terminated at will pursuant to Florida Administrative Code Rule 60L-36.005. 8. Ann Cole, the clerk of DOAH, interviewed all candidates for the newly created proofreader position. 9. There were several applicants for the proofreader position and after a series of tests and interviews Ann Cole determined that Petitioner was the best applicant for the proofreader position and Petitioner was hired for the job. 10. Approximately one month after Petitioner was hired, a second proofreader (Dr. Rappendelli) was hired. Dr. Rappendeli is a white female. 11. Both Petitioner and Dr. Carol Ripandelli were supervised at DOAH by Ann Cole. ATTENDANCE HISTORY 312. During the first month of her employment Petitioner shared a work area in DOAH’s mailroom with current DOAH employee Elma Moore, an African-American female. 13. Elma Moore typically arrived at work between 7:00 and 7:15 a.m. even though the required start time for employees of the clerk’s office was 8:00 a.m. 14. Elma Moore was able to directly observe the times during which Petitioner arrived at work. Ms. Moore noted that Petitioner reported to work forty-five minutes late on her first day. Ms. Moore further noted that Petitioner would often be late. 15. Elma Moore was relocated to another part of the clerk’s office when Dr. Rappendelli was hired. 16. Elma Moore, even from her new workstation, continued to be situated such that she was able to observe the times at which Petitioner customarily arrived at work. 17. Elma Moore testified that during the four month period that Petitioner worked for DOAH, at least two to three times each week, Petitioner would arrive at work approximately ten to thirty minutes beyond the mandatory 8:00 a.m. start time for employees. 18. The testimony of Elma Moore is further corroborated by the affidavit of Deanna Hartford. 19. Ms. Hartford, who was the Deputy Clerk Supervisor for DOAH during Petitioner’s period of employment, stated that she observed Petitioner arrive to work late, without notice, on several occasions during her OPS employment and during her career service probationary employment. 20. Ms. Hartford stated in her affidavit that around the first week of September 1997 she was asked by Ann Cole to observe Petitioner’s attendance. Ms. Hartford noted that during this period of observation Petitioner arrived to work at’ the following times on the dates as indicated: September 8, 1997, 8:20 a.m.j; September 9, 1997, 8:25 a.m.; September 10, 1997, 8:10 a.m.; and September 17, 1997, 8:20 a.m. 21. Ms. Hartford reported to Ann Cole, Petitioner's supervisor, that Petitioner was frequently late for work. 22. This is consistent with Elma Moore’s testimony that Petitioner, at least two to three days per week, was customarily late for work in excess of ten minutes. 23. Petitioner attempted to contradict the testimony of Elma Moore and the affidavit of Deanna Hartford by testifying that she was told by her supervisor, Ann Cole, to make up her tardy time thereby excusing the fact that she was habitually late for work. 24. Ms. Cole stated the importance of proofreaders being punctual to work, and testified that she and Petitioner had at least two meetings where they discussed Petitioner’s tardiness issue prior to her termination. 25. Ms. Cole stated that she spoke with Petitioner about her timesheet and attendance, and the need for Petitioner to tell her when she is late and how she plans to make up her time. 26. Ms. Cole stated that Petitioner’s communication regarding her promptness and plans to make up time never improved. 27. Ms. Hartford stated that she never observed Petitioner disclose her late arrivals to her supervisor, Ms. Cole. On more than one occasion, Ms. Hartford stated, she reported Petitioner’s tardiness to Ms. Cole, who indicated she was unaware of the late arrival. PHONE USE 28. Unlike some of the other jobs in the clerk's office, the proofreader’s duties and responsibilities did not require the utilization of the telephone. 29. Elma Moore stated that during the time that she shared an office with Petitioner, her desk was in close proximity to Petitioner’s desk and that on several occasions she noticed that Petitioner was talking on the telephone. 30. Elma Moore stated that Petitioner was using the telephone for personal calls frequently. 31. Elma Moore further testified that she knew that the responsibilities and duties of the proofreader did not require Petitioner to use the telephone. 32. Deanna Hartford noted in her affidavit that she personally observed that Petitioner was always on the phone. 33. Ms. Hartford also noted in her affidavit that other employees at the Clerk’s office had complained to her about Petitioner’s excessive use of the telephone. 34. Ms. Hartford advised her supervisor Ann Cole about Petitioner’s excessive phone use. 35. In response to the complaint about Petitioner's excessive use of the telephone, Ms. Cole contacted DOAH’s information services department and requested that they audit all of the telephone extensions for the clerk’s office. 36. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 85.5 outgoing phone calls. 37. Petitioner, however, had 294 outgoing calls attributed to her extension during this period. Dr. Carol Ripandelli, the other proofreader, had 79 outgoing calls attributed to her extension during this same period. 38. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 1.6 outgoing calls that exceeded ten minutes in duration. 39. The number of outgoing calls exceeding ten minutes in duration that were attributed to Petitioner's extension during the audit period totaled thirteen. Dr. Carol Ripandelli had only two outgoing calls that exceeded ten minutes in duration attributed to her extension during the audit period. 40. Petitioner denied having made the number of phone calls attributed to her extension. Petitioner also charged that it was possible that other employees could have made outgoing calls from the phone on Petitioner’s desk. 41. Elma Moore testified that it was neither the practice nor the custom of employees of the clerk’s office to regularly use the telephone of other employees. INITIATIVE 42. Deanna Hartford, in her affidavit, noted that in July of 1997 she was asked by Ann Cole to provide additional training to the proofreaders. 43. Petitioner and the other proofreader were instructed to inform Ms. Hartford when they were caught up with their work so that the additional training could be provided. 44. Dr. Carol Rappendeli, the OPS proofreader, sought and received additional training in several areas including filing, assisting in the quarterly file purge and destruction, outgoing docketing procedures, and maintaining the Florida Administrative Code supplements. 45. Petitioner never sought additional training as requested. 46. Ann Cole observed Petitioner nodding off on at least three occasions while in an important proofreading standards meeting. 47. Ms. Cole observed Petitioner cutting coupons at her desk the morning of September 22, 1997, during business hours. 10 48. Elma Moore also testified to the fact that Petitioner, during business hours would frequently work on a personal book when she wasn’t proofreading. DISRUPTIVE AND RUDE BEHAVIOR 49. Ms. Cole testified that along with the attendance problems and telephone usage, Petitioner also had attitude problems. 50. On two occasions, Petitioner felt the need to apologize for rude comments made to her supervisor, Ms. Cole. 51. Ms. Cole observed rude behavior by Petitioner directed toward Dr. Ripandelli when they were discussing proofreading on a particular order. 52. Ms. Cole stated that when Petitioner gets in one of her moods, teamwork between Petitioner and Dr. Ripandelli is ineffective. 53. Ms. Cole testified that she had to speak with Petitioner about her radio and that it was so loud it caused a disturbance in the break room. 54. Dr. Ripandelli testified that Petitioner’s radio was so loud that she bought herself headphones in order to drown out Petitioner’s radio. i 55. In contrast, Ms. Cole testified that Dr. Ripandelli gets along with all the judges and that Dr. Ripandelli interacts fine with her. TERMINATION 56. Ms. Hartford stated that Petitioner never discussed with her any need to accommodate her for a disability or for her religion. 57. Ms. Hartford further stated that Petitioner never mentioned that she was being discriminated against for any reason. Ms. Hartford never observed Petitioner walk with a limp, or have sores or bandages on her legs. 58. Petitioner was terminated on September 30, 1997, due to her chronic tardiness, excessive use of the telephone, and her general failure to demonstrate initiative.
Conclusions Petitioner: Ms. Audrey Randolph, Pro Se 2644 Edgewood Avenue, West Jacksonville, FL 32209-2431 904-713-9913 For Respondent: Mr. Linzie F. Bogan, Esquire Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 850-414-3300 ext. 4650
Recommendation 29 In the present case, Respondent showed a legitimate reason for discharging Petitioner. Petitioner failed to establish a prima facie case of discrimination based upon her race, religion, disability or marital status. Petitioner also failed to demonstrate that Respondent discriminated against her in retaliation for Petitioner engaging in an activity that was protected by Section 760.10(7), Florida Statutes. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 4A day of Vabir ; 2003, in Tallahassee, Leon County, kative Law Judge sd Way, Bin A-0 32398-1703 Filed with the clerk of the Florida Commission of Human Relations this 2" day of December 2003. 30 COPIES FURNISHED: Ms. Audrey Randolph 2644 Edgewood Avenue, West Jacksonville, FL 32209 Mr. Linzie F. Bogan, Esq. Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 Harry Hooper Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Secretary of Commission Mike Hanson Room 1801, The Capitol Tallahassee, Florida 32399-0001
The Issue Whether Respondent was terminated as a deputy sheriff for offenses for which he had been previously disciplined and, if so, whether the termination is barred by principle of "double jeopardy."
Findings Of Fact At all times pertinent to this case, Respondent, Lendel Bright (Respondent), was employed by Petitioner, Everett S. Rice, Pinellas County Sheriff (Petitioner or the Sheriff), as a deputy sheriff or a sergeant. In May 2000, Petitioner received a complaint from Mark Parker, the husband of Belinda Parker, that his wife was having an extra-marital relationship with Respondent. At the time this complaint was filed, Respondent was a sergeant with the Pinellas County Sheriff's Office (Sheriff's Office), assigned to the Child Protection Investigations Division, and Belinda Parker was a civilian employee in the same division and was supervised by Respondent. As a result of the May 2000 complaint, Respondent's supervisor, Lt. Dennis Fowler, forwarded an Administrative Inquiry Form to the Administrative Investigations Division (AID). The inquiry form was subsequently returned to the command level for investigation and documentation. When questioned by Lt. Fowler and Capt. Rodney Steckel, Respondent denied having an extra-marital relationship with Ms. Parker. The allegation was also denied by Ms. Parker. The May 2000 complaint filed by Mr. Parker was later determined to be unfounded based upon several factors. First, during the investigation, both Respondent and Ms. Parker made statements denying the relationship. Second, Mr. Parker retracted his May 2000 complaint and requested that the matter be abandoned. On or about January 31, 2001, Mr. Parker again alleged that Respondent was having an extra-marital relationship with his wife. In this instance, the complaint was made to Capt. Steckel, who on February 1, 2001, made a second complaint to the Sheriff's Office. As a result of this second complaint, an investigation was initiated and conducted by the AID. This matter was assigned Administrative Inquiry No. AI-01-009 (AI-01-009). During the course of the investigation of AI-01-009, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. At the conclusion of the investigation of AI-01-009, the matter was referred to the Administrative Review Board (ARB). Thereafter, the ARB convened to conduct a proceeding. At the ARB hearing, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. In making these denials of the existence of an extra- marital relationship with Ms. Parker to the AID investigators and to the ARB, Respondent was untruthful. At the conclusion of the ARB hearing, the ARB recommended to Petitioner that Respondent be found guilty of violating Sheriff's Office rules and regulations related to untruthfulness and performance of duty. The ARB recommended that Respondent receive a ten-day suspension for these violations. On June 19, 2001, after the ARB hearing, at the request of Respondent's attorney, Petitioner agreed to modify the ARB recommendation. As part of this agreement, Petitioner did not accept the ARB's recommended finding of untruthfulness against Respondent, but instead found that Respondent was guilty of a single Level Five violation related to duties and responsibilities. For Respondent's part, he agreed to accept a demotion from the rank of sergeant to deputy sheriff and to waive his right to seek review of the discipline under the Civil Service Act. This agreement was reached to avoid Respondent's jeopardizing his law enforcement certificate with the State of Florida, Department of Law Enforcement, by having a finding of untruthfulness. Respondent voluntarily entered into the agreement discussed in paragraphs 13 and 14, and he received the benefit of the agreement. Pursuant to the agreement, there was no finding of guilt against Respondent as it relates to untruthfulness, and Respondent was demoted from sergeant to deputy sheriff, effective July 15, 2001, and continued to work for the Sheriff's Office. With this resolution, AI-01-009 was closed on or about June 19, 2001. The Notice of Sustained Complaint, dated June 19, 2001, to Respondent from the Sheriff, memorialized the agreement between the Sheriff and Respondent that there would be no finding as to untruthfulness and that Respondent would be demoted. This Notice of Sustained Complaint concerned AI-01-009 and was based on incidents which occurred between "January 2000 and February 2001." Between December 2001 and December 2002, after entering into the agreement discussed in paragraphs 13, 14, and 15, Respondent wrote a series of memoranda and correspondence to the Sheriff and others within the Sheriff's Office administration. In those written communications, Respondent continued to deny the existence of an extra-marital relationship between himself and Ms. Parker. In those communications, Respondent also alleged that the investigation in AI-01-009 was conducted inappropriately, that he was not treated fairly and equally, and that he had not requested the demotion that he agreed to in June 2001. In making the denials described in paragraph 17 regarding the extra-marital relationship between himself and Ms. Parker and the manner in which AI-01-009 was conducted and resolved, Respondent was untruthful. In February 2002, the AID again received a complaint from Mr. Parker that his wife was continuing to have an extra- marital relationship with Respondent. As a result of the complaint and additional information provided by Mr. Parker, the AID again initiated an investigation into the allegations of the extra-marital relationship. In July 2002, Ms. Parker provided a sworn statement admitting the existence of an extra-marital relationship between herself and Respondent. Ms. Parker also provided additional information regarding the circumstances surrounding that extra- marital relationship. In December 2002, the Sheriff submitted an interoffice memorandum to the AID notifying Respondent that he was the subject of an administrative investigation regarding violations related to truthfulness and conduct unbecoming a member of the Sheriff's Office. Petitioner stated in the interoffice memorandum that as a result of Respondent's correspondence, in which he repeatedly denied having an inappropriate relationship with Ms. Parker and claimed that the prior investigation was unfair, Petitioner "feels obligated to take the extraordinary measure to direct the Administrative Investigations Division to 're-examine this particular matter' and present the findings to the ARB." As a result of the December 2002 interoffice memorandum, the AID conducted an investigation into the actions of Respondent as they related to his conduct, the use of agency equipment, and his testimony and statements previously given to supervisors or in previous investigations. This matter was assigned Administrative Inquiry No. AI-02-082 (AI-02-082). During the investigation of AI-02-082 that followed, the AID confirmed the statement of Ms. Parker regarding the existence of an extra-marital relationship between her and Respondent. As part of the investigation of AI-02-082, on January 22, 2003, Respondent gave a sworn statement, in which he admitted to having an extra-marital relationship with Ms. Parker. Respondent also admitted that he had been untruthful in his previous statements regarding the extra- marital relationship. During the investigation related to AI-02-082, in his January 22, 2003, sworn statement, Respondent admitted to utilizing Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Many of these phone calls were to Ms. Parker and took place after the closure of AI-01-009. During the investigation related to AI-02-082, in a sworn statement, Respondent admitted to authoring official Sheriff's Office documents, interoffice memoranda, and correspondence, that contained falsehoods. In one memo, written in or about December 2001, to the chief deputy in the Sheriff's Office, Respondent stated, "I never had or considered having an affair with Mrs. Parker, there was only a personal friendship" and that he "was truthful at all times." These memoranda were official Sheriff's Office communications that were written and disseminated by Respondent after the closure of AI-01-009. Notwithstanding Respondent's repeated and continuous denials in official Sheriff's Office documents, he continued to have an extra-marital relationship with Ms. Parker after AI-01-009 was settled and closed. By Respondent's own admission, the extra-marital relationship with Ms. Parker began in January 2000 and did not end until February or March 2002. After the investigation of AI-02-082 was concluded, an ARB hearing was convened on or about February 10, 2003. During this proceeding, Respondent again admitted to having an extra- marital relationship with Ms. Parker and to his having been untruthful in his previous statements regarding the extra- marital relationship. Respondent also admitted that he utilized the Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Moreover, Respondent admitted that he wrote and distributed interoffice memoranda and correspondence, referenced above, that contained falsehoods. Based on its review of the allegations and the evidence related to AI-02-082, the ARB determined that Respondent was guilty of violating the Civil Service Act and the rules, regulations, and operating procedures of the Sheriff's Office. A February 10, 2003, interoffice memorandum sets forth the violations with which Respondent is charged and the conduct, which is the basis of those violations. The violations and conduct are summarized as follows: Pinellas County Sheriff's Office Rule 3-1.1 (Level Five violation), 5.6 related to Truthfulness; to wit: Members are required to be truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations. Synopsis: Respondent was untruthful, repeatedly, to both supervision and the Administrative Investigations Division (while under oath) concerning his involvement in a paramour relationship. Pinellas County Sheriff's Office Rule 3-1.1 (Level Five Violation), 5.14 related to Conduct Unbecoming Members of the Agency, to wit: Knowingly making false entry or cause false entry to be made in any official record of the Sheriff's Office. Synopsis: Respondent knowingly made false entry on official agency records by repeatedly submitting inter-office memorandums, which he now admits contained both falsehoods and mistruths. Pinellas County Sheriff's Office Rule 3-1.3 (Level Three Violation), 3.1 related to Standard of Conduct, to wit: Members shall conduct their private and professional lives in such a manner as to not bring discredit to the Sheriff's Office. Synopsis: Due to Respondent's paramour relationship and his attempt to perpetrate falsehood and mistruths concerning the administrative investigative process, he brought discredit to the Sheriff's Office. Pinellas County Sheriff's Office Rule 3-1.1 (Level Three Violation), 3.1 related to Unauthorized Use of Agency Equipment, to wit: Members will not appropriate equipment owned by the agency for their own use. Synopsis: Respondent repeatedly used the agency-issued cellular telephone for personal use and failed to reimburse the agency for those calls. The violations resulted in a cumulative point total of 75, which allows for discipline from a ten-day suspension to termination. The ARB recommended to the Sheriff's Office that Respondent be terminated. The Sheriff reviewed the recommendation of the ARB and agreed with the recommendation. In the Notification of Sustained Complaint dated February 10, 2003, the Sheriff notified Respondent that he was being terminated from employment with the Sheriff's Office. The notification indicated that the complaint which was the basis of the sustained complaint involved incidents that occurred on "June 2000 through [p]resent." The violations in AI-01-009 and the underlying conduct, which was the basis for those violations, were resolved pursuant to the negotiated settlement agreement between the Sheriff and Respondent. Therefore, that conduct is not actionable in a subsequent disciplinary proceeding. However, the Sheriff is not precluded from imposing discipline for conduct which occurred after AI-01-009 was closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding Respondent guilty of violating Sheriff's Office Rule 3-1.1, 5.14, related to conduct unbecoming members of the agency; Sheriff's Office Rule 3-1.1, 3.1, related to standard of conduct; and Sheriff's Office Rule 3-1.1, 3.1, related to unauthorized use of agency equipment; and upholding Respondent's termination as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 3rd day of September, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue The issue is whether Grand Boulevard Health and Rehabilitation, d/b/a FL HUD Destin, LLC (“Grand Boulevard”), committed an unlawful employment practice by discriminating against Angela D. Jones based on her race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Ms. Jones is a 49-year-old African American female. She has a high school degree and earned certifications or licenses enabling her to work as a certified nursing assistant (“CNA”), a home-health aide, a cosmetologist, and a security guard. However, healthcare has been her primary field of work. 2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio recording made by Mr. Manning and that she had intended to move that audio recording into evidence. The audio recording was not received by DOAH. Nonetheless, the undersigned has determined that no prejudice resulted to Ms. Jones because there was no dispute regarding the event described by Mr. Manning’s affidavit. In May of 2019, Ms. Jones was working in a nursing home and heard from a coworker about the substantial benefits and signing bonus that Grand Boulevard was offering new hires. Grand Boulevard’s employment application contained a question asking each applicant to respond “yes” or “no” as to whether he or she had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre- trial intervention program as a result of being charged with a crime.” Ms. Jones left that portion of her application blank.3 Ms. Jones responded “no” in response to a question asking if she had “ever been convicted of any criminal violation of law, or [if she was] now under pending investigation or charges of violation of criminal law.”4 The employment application contained a provision requiring Ms. Jones to certify that: the information provided in this employment application (and accompanying resume, if any) is true and complete. I understand that any false, incomplete, or misleading information given by me on this form, regardless of when it is discovered, may disqualify me from further consideration for employment, and may be justification for my 3 Ms. Jones testified that she told Shakara Mayberry, Grand Boulevard’s Director of Staff Development at the time, that she had a criminal background and that she left that portion of the application blank because she could not remember specific details about the charges. Ms. Jones also testified that she offered to supplement her application with precise information after she had an opportunity to consult documentation in her possession. According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry about disclosing her criminal background. Ms. Mayberry also testified during the final hearing and denied telling Ms. Jones that she could leave that portion of her application blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to why Ms. Jones was hired without completing that portion of her application. 4 Respondent’s Exhibit 3 was Ms. Jones’s responses to interrogatories from Grand Boulevard. Via her responses, Ms. Jones provided documentation regarding her criminal history. However, Grand Boulevard did not request that Respondent’s Exhibit 3 be accepted into evidence. When being questioned about Respondent’s Exhibit 3, Ms. Jones acknowledged that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting an officer; (3) been arrested for criminal mischief; and (4) entered a plea on a different criminal mischief charge. dismissal from employment, if discovered at a later date. After conducting a background check through the Agency for Health Care Administration (“AHCA”) indicating Ms. Jones had no disqualifying offenses, Grand Boulevard hired Ms. Jones.5 Ms. Jones began working for Grand Boulevard on May 15, 2019, as a CNA helping nursing home residents with activities of daily living such as dental hygiene, grooming, and eating. On June 16, 2019, a resident in Ms. Jones’s care suffered injuries after he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its policy, Grand Boulevard suspended Ms. Jones while the Walton County Police Department investigated the incident. Ms. Jones returned to work at Grand Boulevard three days later but was suspended again on June 20, 2019, because she had allowed her CNA certificate to expire. Ms. Jones paid her delinquency fee, and her certificate was reinstated. During the course of the investigation of the June 16, 2019, incident, an investigator from the Walton County Sheriff’s Office asked Heather Hanna, Grand Boulevard’s Director of Nursing at the time, why Grand Boulevard would hire someone such as Ms. Jones with a criminal history. Ms. Hanna then had Ms. Jones’s application pulled and noticed that Ms. Jones did not 5 Section 400.9065, Florida Statutes, mandates that AHCA “shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.” Section 408.809(1)(e), Florida Statutes, requires level 2 background screening of any person who is expected to provide personal care services directly to nursing home residents. Section 435.04(2), Florida Statutes, lists many specific offenses that disqualify someone from working in a nursing home. Accordingly, the background screening conducted through AHCA is narrower in scope than Grand Boulevard’s employment application, which asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” For example, while Ms. Jones acknowledged that she has pled no contest to a battery charge, that charge would not necessarily have been a disqualifying offense because section 435.04(2) only encompasses felony battery, battery on a minor, sexual battery, and battery on a vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying offenses. respond to the question asking if she had ever been charged with a crime. Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019: I received a visit from Investigator Donna Armstrong with Walton County PD and Julianne Dalton APS investigator. The investigator questioned why we would have an employee who had a recent arrest record, she stated that she knew Angela Jones from the community and that she was concerned that she was employed here. We reviewed her application and found that she had not checked the boxes related to history of arrests.[6] I called Ms. Jones with Tuwanna RN Risk Manager and [Shakara] Mayberry LPN SDC present in the room. I placed Ms. Jones on speaker phone and asked if she had been arrested for any recent criminal activity and she confirmed that she was arrested for battery, petty theft and fighting. I notified the employee that failure to disclose this information could lead to termination and suspended her at that time. The DCS did pull her background through the AHCA clearing house and we confirmed that she still showed eligible for employment. Grand Boulevard then suspended Ms. Jones and ultimately terminated her on June 27, 2019, on the basis that she “knowingly falsified [her] employment application.” There was no persuasive evidence of Grand Boulevard giving more favorable treatment to nonminority employees who neglected to fully disclose whether they had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” Any testimony from Ms. Jones on that point was 6 The pertinent question on the application does not require applicants to disclose arrests. The question asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” either unpersuasive, unsubstantiated, or insufficiently specific. Accordingly, the greater weight of the evidence does not demonstrate that Grand Boulevard committed an unlawful employment practice.
Conclusions For Petitioner: Angela D. Jones, pro se 115 Christie Lane Panama City, Florida 32404 For Respondent: David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602
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. Jones’s Petition for Relief. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Angela D. Jones 115 Christie Lane Panama City, Florida 32404 David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue is whether Respondent, Polk County Sheriff's Office, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Shelia Davis. Specifically, Petitioner alleged that Respondent retaliated against her by using "insubordination" as a cover-up for her termination for reporting a fellow officer beating a handcuffed inmate and discriminated against her because of her marital status.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence, and the entire record compiled herein, the following evidentiary, relevant, material and ultimate facts are determined. Respondent, Polk County Sheriff's Office (Sheriff), at all times material to this cause, was an "employer" as that term is defined under Florida Civil Rights Act of 1992, as amended, Section 760.02(7), Florida Statutes. Petitioner, Shelia Davis (Ms. Davis), at all times material to this cause, was an "aggrieved person" as that term is defined under Florida Civil Rights Act of 1992, as amended, Section 760.02(10), Florida Statutes. Ms. Davis alleges in her Petition that on May 29, 1998, the Sheriff terminated her in retaliation for her preparing an incident report on January 3, 1998. Ms. Davis also alleged that her termination was also because of her marital status, in violation of the Florida Civil Rights Act (Act), Chapter 760.10 Florida Statutes. In 1994, Ms. Davis was hired by the Sheriff as a Book- In Clerk and remained employed by the Sheriff until her termination on May 29, 1998. While employed by the Sheriff, Ms. Davis married Curtis C. Young (Young) in 1997, in Pasco County. Ms. Davis and Young subsequently divorced at some point in time before April 1998. In December 1997, the Sheriff initiated an administrative investigation into allegations that Ms. Davis was passing confidential information about inmates to her then husband, Young. The administrative investigation continued through April 1998. On January 3, 1998, while on duty Ms. Davis observed and reported to Sergeant Petote an incident of Officer Sanders allegedly beating a handcuffed inmate. Sergeant Marshall, Ms. Davis' supervisor at that time, was made aware of the reported incident, and he made jokes of the use of the slang term "Jacked Up" used by Ms. Davis in her report to Sergeant Petote. The following day, January 4, 1998, Ms Davis was working in the Booking Area information desk. During her tour of duty, Ms. Davis got into an argument with a civilian. After a discussion between Ms. Davis and Sergeant Marshall, he relieved Ms. Davis of duty in the Booking Area and reassigned her to duty in the control tower. From the testimony of the conversation between the two, tension became evident. As a result, Sergeant Marshall reported Ms. Davis as being "insubordinate," relieved Ms. Davis from duty, and sent her home for the remainder of the night shift. The above incident was reported to Lieutenant Tom Cockroft who instructed Sergeant Marshall to suspend Ms. Davis for the remainder of the January 4, 1998, tour of duty. Upon informing Ms. Davis of her suspension, another argument ensued between Ms. Davis and Sergeant Marshall. On January 5, 1998, based on the report by Sergeant Marshall and the concurrence of Lieutenant Cockroft, Ms. Davis was charged with violating the Sheriff's General Orders G.O. 26.1.E.,8.,a (Respect Toward Supervisors); G.O. 26.8.,b.,2. (Abusiveness); and G.O. 26.1. E.,8.,d. (Compliance and Execution of Lawful Orders). Ms. Davis, at some time prior to January 1998, began to participate in the Polk County Crime Stoppers, a program designed to permit civilians to report known and suspected criminals and criminal activities. It was the policy of Crime Stoppers to give monetary rewards to those persons whose information and tips resulted in or assisted in the arrest of persons committing or who had committed criminal acts. Ms. Davis became aware that her ex-husband, Young, may have been incarcerated in the Pinellas County Jail under an alias. Sometime during the month of April 1998, Ms. Davis contacted the Pinellas County Sheriff's Office and related that she may have information regarding an inmate jailed under an alias, i.e. her ex-husband, Young. Upon becoming aware that Ms. Davis was an employee of the Sheriff, Lieutenant Jacobs of the Pinellas County Sheriff's Office advised Ms. Davis to work through the Sheriff and not directly with the Pinellas County Sheriff's Office in the future. The Pinellas County Sheriff's Office informed the Sheriff of Ms. Davis' contact, and Lieutenant Blackwelder, of the Sheriff's Administrative Investigation Department, engaged in a joint effort to confirm the identification of the Pinellas County Jail inmate, believed to be Young. Lieutenant Blackwelder ordered Ms. Davis to cease calling the Pinellas County Sheriff's Office regarding Young. At this meeting an argument ensued. Subsequent to the above meeting with Lieutenant Blackwelder and the order to discontinue interference with the investigation by the Pinellas County Sheriff's Office, Ms. Davis telephoned the Pinellas County Sheriff's Office regarding Young for the intended purpose of collecting a Crime Stoppers reward. Ms. Davis acknowledged making contact via her cell phone on her off-duty hours with the Pinellas County Sheriff's Office after being ordered by Lieutenant Blackwelder to cease all contact. This course of conduct resulted in an allegation that Ms. Davis violated G.O. 26.1.E.,8.,d. (Compliance and Execution of Lawful Orders) and G.O. 26.1.E.,8.,a. (Respect Toward Supervisors). On or about April 22, 1998, Lieutenant Cockroft suspended Ms. Davis with pay for the violations hereinabove. In May 1998, a pre-disciplinary hearing regarding the above-cited charges was held, and all charges were sustained resulting in termination of Ms. Davis' employment with the Sheriff on May 29, 1998. Ms. Davis filed a discrimination complaint with FCHR in October 1998, and in 1999, FCHR informed Ms. Davis that her complaint was unsubstantiated.
Recommendation Based on the Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order DISMISSING Petitioner's discrimination complaint herein filed. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 16th day of September, 2002.
