The Issue The issues to be determined are whether Driving Under the Influence (DUI) with property or personal damage and DUI manslaughter, are crimes that relate to the practice of, or the ability to practice, dentistry, within the meaning of section 466.028(1)(c), Florida Statutes, as alleged in the First Amended Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent, Matthew Moye, D.D.S., was a dentist within the State of Florida, having been issued license number DN16032 on August 2, 2002. Respondent’s address of record with the Department is Marion Correctional Institution, Post Office Box 158, Lowell, Florida 32663. Respondent began his private dental practice, Big Bend Dental, in 2009. Respondent offered the following procedures in his practice: composite fillings; crown and bridgework, including preparing teeth for crowns; root canals; dentures; extractions, including molar and wisdom teeth extractions; Botox; and lip fills. Respondent has never been the subject of a disciplinary action against his license to practice dentistry. On or about October 31, 2010, while under the influence of alcohol, Respondent was involved in a motor vehicle collision in which he lost control of his vehicle on the Harbor Island Bridge in Tampa, Florida. Respondent struck three people with his vehicle, killing two, and caused property damage. On November 7, 2013, Respondent pled guilty to, and was convicted of, two counts of first-degree misdemeanor DUI with Property or Personal Damage and two counts of second-degree felony DUI Manslaughter based on the above incident. Respondent’s sentence included: 12 years of incarceration; 10 years of probation following release from incarceration; and Permanent revocation of driver’s license. Respondent has not practiced dentistry since being incarcerated. Other Findings of Fact Dr. Johnson testified that dentists operate from a position of trust, and that there is an expectation of professionalism and good judgment on the part of persons holding a license to practice dentistry. Upon his review of the police reports and court documents related to Respondent’s crime, he opined that the acts described therein evince recklessness and a lack of good judgment. As a result, he believed that the crimes affected Respondent’s practice or ability to practice dentistry. On cross-examination, Dr. Johnson candidly admitted that his opinion as it related to DUI Manslaughter was based on how he felt about that crime, and on his personal principles. He reviewed no journals or professional publications. He did not review court decisions or Board of Dentistry final orders. He was aware of no general consensus in the dental community as to whether DUI Manslaughter is a crime related to the practice or ability to practice dentistry. He had no training in substance abuse impairment, and could not state whether a single DUI could be used to diagnose alcohol abuse or impairment. As to evaluating whether an act affects the practice of dentistry, Dr. Johnson testified that “at some point along the way, there’s always going to be personal opinion. You know, could be somebody like mine. Could be a personal opinion on the Board of Dentistry.” What is clear from the totality of Dr. Johnson’s testimony is that his opinions reflect his personal belief as to whether DUI Manslaughter affects the practice or ability to practice dentistry, an opinion influenced by his self-perception as “a very black-and-white person.” Despite the stipulation as to his expertise, Dr. Johnson could identify nothing in his education or experience that made him an expert in crimes that affect the practice of dentistry, other than his years as an experienced, well-regarded, and respected oral and maxillofacial surgeon. The legislature’s 2013 amendment of section 90.702, Florida Statutes, was intended to replace the Frye standard of opinion testimony, which allows “pure opinion” testimony, with the Daubert standard, which does not. Chapter 2013-107, sections 1 and 2, Laws of Florida. In 2017, the Supreme Court declined to adopt the legislative change under its authority over procedural matters in Florida courts. In re: Amendments to the Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017). Whether the Supreme Court’s decision to decline to adopt the Legislature’s Daubert amendment bears on the issue at DOAH, an executive branch agency, is an interesting question, but one for another day. In this case, Dr. Johnson’s testimony comes down to a matter of weight. Were his testimony directed to a particular standard-of-care on the part of a licensed dentist, the undersigned would have no problem accepting his years of experience as a suitable basis for an opinion on that issue. Dr. Johnson’s opinion that the “act” of deciding to drive a vehicle while intoxicated is evidence of recklessness or lack of judgment that can reasonably affect the ability to practice dentistry. However, Dr. Johnson’s subjective belief that the unintentional outcome of that act evinces a greater lack of trustworthiness, or shows a higher degree of reckless behavior or poor judgment, does not rise to the level of competent, substantial evidence to support a finding that DUI Manslaughter is any more related to the practice of dentistry than is a DUI. There is insufficient evidence to support a finding that the act of driving under the influence of alcohol, regardless of the outcome of that act, is directly related to Respondent’s ability to provide effective and safe treatment of his patients. As it pertains to this case, the behavior that reflects on Respondent was his decision to get behind the wheel of his car while intoxicated. That is the conduct for which there is some evidence that demonstrates that Respondent exhibited “reckless behavior” and a “lack of judgment.” Counsel for Petitioner presented a well-researched and articulate analysis of the reasons underlying the legislature’s policy decision to classify incidents of impaired driving resulting in death as manslaughter. The basis for that policy decision is that a death resulting from DUI is the result of a presumptively negligent and culpable act, i.e., getting behind the wheel of a vehicle. However, the cases cited by Petitioner highlight the “policy choice” made by the Legislature to impose a heightened penalty for a DUI that results in death. The citation to State v. Hubbard, 751 So. 2d 552 (Fla. 1999), is certainly apropos, and worthy of repeating: We recognize that the Legislature accords disparate treatment to DUI and DUI manslaughter, for example. On the one hand, driving while drunk is a misdemeanor which requires at least three convictions to earn a year's imprisonment. § 316.193(2)(a) 2.c., Fla. Stat. (1995). It will only become a third-degree felony carrying a potential of five years' imprisonment upon a fourth or subsequent conviction. § 316.193(2)(b), Fla. Stat. (1995). In contrast, a drunk driver whose operation of his or her automobile causes the death of another is guilty of a second-degree felony, carrying a potential fifteen-year prison term. The Legislature clearly has made the policy choice to impose more severe sanctions on the drunk driver who kills someone than on the drunk driver who is fortuitously caught before possibly killing someone. While that may seem a bit unfair, it is hardly irrational. Id. at 565 n. 29. (emphasis added). There has been no such express legislative “policy choice” here. Rather, as it relates to this case, the Legislature has chosen to sanction conduct only to the extent that it relates to the practice of dentistry.1/ The motivation for legislative policy decisions and regulatory decisions are entirely different. See, Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 295 (2010). (“Unlike criminal law, which is aimed at punishing wrongdoers, or civil law, which is aimed at victim compensation, professional discipline seeks to protect public welfare by incapacitating or rehabilitating dangerous physicians.”). The fact that the Legislature elected to punish DUI Manslaughter more severely than DUI based on the result of the act is not sufficient grounds to impose a different regulatory penalty for the same “act” based on the result. There has been no express “policy choice” by the Department that an act is more worthy of a different regulatory sanction based on its result. Again, it is the voluntary act of driving while intoxicated that reflects on the ability to practice dentistry, not the unintended, even tragic, result. The tragic outcome of Respondent’s reckless act of driving while impaired, though it certainly affects how Respondent’s behavior is treated from a criminal perspective, has little to do with whether it affects the clinical quality of his work, the quality of his patient care, or his ability to practice dentistry. The nature of the violation in this case has fairly been characterized as one of “character,” and not “competence.” As observed by Professor Sawicki, “many of the most serious disciplinary actions taken on the basis of criminal convictions involve criminal misconduct with no immediately apparent impact on patient safety or public health.” Sawicki, supra at 304. The incident here was not shown to have any effect on Respondent’s technical qualifications or abilities to practice dentistry. There was no suggestion that the DUI was the result of a broader pattern of alcohol abuse that affected Respondent’s practice of dentistry at the time of the incident. Given the terms of his probation after he is released -- neither driving nor alcohol consumption will be allowed -- there will be no possibility of a recurrence of the violation. Thus, the violation is directed to societal issues of trust and judgment, rather than ability and competence. The evidence in this case is sufficient to demonstrate that the act of driving while impaired is one that generally demonstrates recklessness and a lack of good judgment, and that such attributes can be correlated to one’s ability to effectively practice dentistry. The evidence in this case was not sufficient to demonstrate that the crime of DUI Manslaughter involves any greater degree of recklessness, or a heightened degree of poor judgment than does a DUI. Furthermore, the undersigned rejects the contention that Respondent’s inability to practice dentistry during his period of incarceration is a basis for revocation of his license. Petitioner pointed to no requirement that a licensed dentist engage in any minimum number of practice hours to maintain a license. Any necessary practical experience can be addressed in reasonable conditions as addressed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: determining that Respondent violated sections 456.072(1)(c) and sections 466.028(1)(c) and (mm), as a result of the recklessness and lack of judgment exhibited by his decision to drive while under the influence of alcohol; placing Respondent’s license on probation for a period of one year, to commence upon his release from incarceration, with appropriate terms of probation to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5-13.005(3)(d)2.; imposing an administrative fine of $10,000 to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring reimbursement of costs to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring completion of an ethics course; requiring 100 hours of community service to be performed concurrently with that required as a condition of Respondent’s probation; and requiring an evaluation from the Professionals Resource Network. DONE AND ENTERED this 14th day of June, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2018.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent, William Henry Thomas, committed the violations alleged in a two-count Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on July 26, 2005, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged with the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes. Respondent William Henry Thomas is a licensed Florida real estate agent. Mr. Thomas's license number is 590454. At the time of the hearing, Mr. Thomas was listed as a sales associate affiliated with Brenner Realty, Inc. ("Brenner Realty"), license number CQ 1014108, a brokerage corporation located at 9400 Gladiolus Drive, Suite 290, Fort Myers, Florida 33908. Mr. Thomas has been actively licensed in Florida since August 17, 1992. No prior disciplinary action has been brought against Mr. Thomas. On December 20, 2002, Mr. Thomas entered a plea of nolo contendere to two counts of possession of child pornography pursuant to Subsection 827.071(5), Florida Statutes. Mr. Thomas was adjudicated guilty and sentenced to five years of sex offender probation for each count, the sentences to run consecutively. Mr. Thomas was also ordered to attend sex offender treatment and counseling, and not to attend "any nudist colonies" during the period of his probation.2 The official transcript of Mr. Thomas' plea proceeding was entered into the record of this case. During that proceeding, assistant state attorney John L. Burns described the facts that the state would have shown at trial as follows: Judge, what we show is that through the testimony of various agents from the Federal Bureau of Investigation . . . that [an] Internet computer investigation began nationwide that eventually through their investigation turned up several people, some in Texas, across the country, but eventually a portion of the investigation was linked to this defendant.[3] And that we would show on several occasions Mr. Thomas had in his possession—— what he would do is, he would take from news groups depictions that would be deemed child pornography, and while he would not download them to his computer, he would save the pictures on what's called [an] ISP server, such as Yahoo, or Hotmail, which would allow him to access those pictures via his computer at any time. He was able to receive, send, or distribute those photographs through the Internet by posting those photographs from one news group to another news group. At the court's behest, Mr. Burns made the standard plea inquiries of Mr. Thomas, who answered that he could read, write and understand the English language; that he was not currently under the influence of any drugs, alcohol or intoxicants; that he was not suffering from mental illness; that he had no physical disabilities that would prevent him from understanding his plea; that he in fact heard and understood the terms of his plea; that he desired to enter the plea; that he had the opportunity to ask his attorney questions about the plea; that his attorney satisfactorily answered those questions; that he was giving up the right to a jury trial and to appeal his adjudication; that he had not been threatened or coerced in any manner to enter the plea; that he had been given no promises in exchange for his plea, aside from the agreement stated in open court; and that he was fully satisfied with the services of his attorney. Despite his statements in open court, Mr. Thomas testified in the instant proceeding that his plea was in essence coerced by his then-attorney. Mr. Thomas testified that FBI agents arrived at his front door on February 26, 2002. They had no warrant and asked to come inside and talk. Mr. Thomas let them in and talked with them for an hour about message boards. The agents asked whether Mr. Thomas was familiar with the "Candyman" internet site. Mr. Thomas admitted using message boards, but told the agents he had never heard of the "Candyman" site. The agents asked if they could examine Mr. Thomas' computer. Believing he had no choice, Mr. Thomas allowed the agents to search his computer. His computer was never seized by law enforcement authorities, and no search warrant was ever issued against Mr. Thomas. Mr. Thomas testified that he was never a member of the Candyman group and never knowingly received images from its members. He stated that the Yahoo e-mail address and internet service provider ("ISP") that the FBI attributed to him were incorrect, and that his own Yahoo account was set up to automatically block e-mail and spam. Mr. Thomas testified that his lawyer never obtained adequate discovery from the FBI and that he was never allowed to see the two photographs that he was alleged to have had in his possession.4 Mr. Thomas testified that his lawyer convinced him that pleading to the charges in state court and accepting probation was the only way to avoid federal prosecution and a possible prison sentence. Mr. Thomas was convinced that the FBI would not hesitate to provide false testimony in order to obtain his conviction in a federal trial. Further, during the time the prosecution was pending, Mr. Thomas' wife was diagnosed with diabetes and hospitalized. She suffered pronounced weight loss and was emotionally distraught at the thought of Mr. Thomas going to prison. In light of all these circumstances, Mr. Thomas decided to accept the plea offer. Mr. Thomas testified that, while it seemed expedient at the time, accepting the plea offer only caused him more distress. He had a long talk with his wife, during which he told her he could not live with the fact that he had admitted guilt to a crime he did not commit. In January 2003, Mr. Thomas retained his current counsel and set about attempting to set the plea aside and vacate his conviction, via various motions filed during January and February 2003. The motions were ultimately denied by court order dated February 21, 2003. Mr. Thomas received a final order of probation on March 10, 2003. In a letter dated March 14, 2003, Mr. Thomas informed the Florida Real Estate Commission of his nolo contendere plea to the charge of possession of child pornography, a third degree felony. The letter was received by the Department on March 21, 2003. Mr. Thomas conceded that the letter was sent more than 30 days after he entered his plea. Mr. Thomas testified that for a time after he entered his plea, he was unaware of the 30-day reporting requirement. After he learned about the requirement, he still hesitated because he believed that his plea was not final while his motions to set the plea aside and vacate his conviction were pending before the court. Mr. Thomas did notify the Florida Real Estate Commission within 30 days of the court order denying his motions. The evidence indicates that Mr. Thomas did not attempt to conceal his conviction from the local real estate community in Port Charlotte. He immediately informed his broker at Century 21 of his conviction. Mr. Thomas left Century 21 in March 2003 after it became uncomfortable to work there, due to his employer's misguided concern that Century 21 would be listed on Mr. Thomas' entry on the Florida Department of Law Enforcement's sex offender web page. Mr. Thomas began interviewing with other brokerages, and informed them of his conviction. These facts lend added credibility to Mr. Thomas' contention that he would have reported his conviction to the Florida Real Estate Commission within 30 days had he been fully cognizant of the requirement to do so. Under the terms of his probation, Mr. Thomas had to allow his probation officer to conduct periodic "walk-throughs" of his home and to perform annually a complete search of the home. During the annual search performed on April 27, 2004, the probation officer found a box containing more than 200 "naturist" publications that included photographs of adults and children in the nude. The box was stored in a closet, out of plain sight. The probation officer, Douglas Skelly, testified that it was obvious the box had not been recently looked through. Though the photographs did not depict sexual activity, Mr. Skelly stated that the materials constituted a violation of Mr. Thomas' sex offender probation and reported the alleged violation to the court. Mr. Thomas testified that the box of naturist publications had been stored in the closet since before his arrest and that he had simply forgotten they were there. On September 23, 2004, the court accepted Mr. Thomas' plea of guilty to two counts of probation violation. However, rather than revoking or extending Mr. Thomas' probation, the court actually reduced it from ten to seven years. Mr. Skelly verified that, aside from the incident with the naturist publications, Mr. Thomas has complied with every requirement of his sex offender probation. Frank Vargo is the pastor of Freedom Bible Church, a 300 member church that Mr. Thomas has attended for six years. Pastor Vargo testified that Mr. Thomas told him about his history, and that Pastor Vargo kept an eye on Mr. Thomas while getting to know him. Pastor Vargo is convinced that Mr. Thomas is a good person and noted that Mr. Thomas "faithfully" attends church and is a frequent volunteer. Pastor Vargo has heard nothing negative about Mr. Thomas. He has recommended Mr. Thomas to persons needing a real estate agent, and would not hesitate to do so in the future. Scott Brenner is a Florida licensed real estate broker and the owner of Brenner Realty, with which Mr. Thomas has been licensed for about three and one-half years. Mr. Brenner has been aware of Mr. Thomas' legal situation since hiring him. He described Mr. Thomas as possessing a high degree of professionalism, integrity, and an earnest desire to represent his clients. Mr. Brenner has no qualms about Mr. Thomas' having access to the lockbox that allows a real estate agent to enter a house for sale. He has received no complaints about Mr. Thomas. Fellow realtors Susan Pintz and Robert Hackett testified on behalf of Mr. Thomas. They both spoke highly of his professional capabilities and personal qualities. Ms. Pintz stated that Mr. Thomas has always acted with honesty and integrity. Mr. Hackett, who has known Mr. Thomas and his family for 15 years, was grateful to Mr. Thomas for helping him pass the real estate licensing exam and became good friends with him. Mr. Hackett testified that he has never seen Mr. Thomas do anything dishonest, unethical, or inappropriate in his business or personal dealings. Margaret Thomas has been married to Mr. Thomas for 30 years. They have a 26-year-old son. She described Mr. Thomas as a good husband and father, and a fine person who is always the first to help others in times of distress. Ms. Thomas is the general manager of a hearing aid service, and testified that the family income would be cut by half if Mr. Thomas lost his real estate license. She has diabetes for which she takes insulin, and she takes other medications for a mini-stroke she has suffered. Mr. Thomas has recently had several surgeries for diverticulosis and a ruptured bowel. Ms. Thomas testified that her husband's income is critical to meeting the family's medical and other expenses. The Department offered no actual evidence to establish that Mr. Thomas presents a risk to persons dealing with him in a professional capacity. The hypothetical situation of Mr. Thomas' using his lockbox privileges to enter a house in which only children were present was mooted at the hearing. Mr. Thomas persuasively testified that such an incident has never occurred in his experience. His clientele in Port Charlotte consists mainly of retirees; he has not had a client with children in five or six years. In any event, Mr. Thomas has practiced pursuant to his license almost continuously since 1992 without incident or complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that A final order be entered finding that William Henry Thomas violated Subsections 475.25(1)(f) and (p), Florida Statutes, and placing his license on probation for a period of five years. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2008.
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation 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 subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent Employer has committed an unlawful employment practice against Petitioner by discrimination against her on the basis of race, sex, handicap, or retaliation, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a Negro female. As of March 12, 2003, she was rated by the Veterans’ Administration (VA) as having a 30 percent disability, due to a knee injury which occurred while she was on active military duty. (Petitioner’s unrefuted testimony and Exhibit P-37.) Petitioner specifically has alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, and that she was denied a reasonable accommodation for her alleged knee “handicap.” Her “disparate treatment” allegation was presented in two respects: (1) that employees outside Petitioner’s protected racial class were not disciplined as harshly as Petitioner; and (2) that because Petitioner had worked for Respondent Employer for more than twelve months’ total, the State of Florida career service rules do not support her being terminated as a “probationary employee” from the position to which she was promoted and in which she had worked for less than twelve months at the time of her termination. Petitioner was first employed by Respondent Employer on November 15, 2002, at St. Lucie Regional Juvenile Detention Center in the position of Juvenile Detention Officer (JDO). After completing her twelve months’ probation in that position, Petitioner attained permanent State of Florida career service status. This meant that Petitioner was considered a permanent State of Florida employee, but it did not mean, as she has asserted, that she did not have to undergo a twelve months’ probationary period in each career service promotional position, if and when she attained one, or that she could never be terminated for cause. (See Conclusions of Law.) On September 10, 2003, at Petitioner's request, she was transferred from St. Lucie Regional Juvenile Detention Center to a vacant JDO position at Alachua Regional Juvenile Detention Center (ARJDC or “the facility”). This transfer permitted her to pursue a higher education at Santa Fe Community College (SFCC) in Gainesville, via her VA benefits, while being employed fulltime. When she transferred, Petitioner prepared a memo to all her supervisors at ARJDC stating that she needed to work the 11:00 p.m. to 7:00 a.m. shift so she could attend college classes in the mornings. However, at no time did the Employer guarantee that Petitioner would always be assigned to that shift. (P-35) At all times material, Petitioner was a single parent, working full time, and taking college classes. As a single parent, she was the sole support of her child. Because she was going to college pursuant to VA guidelines, she had to attend her classes and successfully complete them in order to continue to receive VA tuition and assistance. At all times material, Jill Bessette (Caucasian female) was employed in the position of ARJDC’s superintendent. As such, she was responsible for the overall functioning and operations at ARJDC, and for ensuring the safety and security of that facility’s juveniles and staff. Bessette relied on the facility's two assistant superintendents, Patricia Newman (Caucasian female) and Charles Parkins (Caucasian male), to assist her. Newman and Parkins oversaw daily operations, attended to personnel matters, and provided direct supervision of staff. In so doing, they regularly made written and oral reports to Bessette. On February 13, 2004, as a result of good reports about Petitioner's performance as a JDO at the facility, Bessette promoted Petitioner to the position of Senior Juvenile Detention Officer (SJDO). (P-17). On or about February 23, 2004, Petitioner complained to her superiors about Douglas Singleton (male) evaluating her, because she felt he had not observed her often enough. She was also rated by a female officer, Cohen, and wanted Cohen’s rating retained. This may have been a departmental career service or a union grievance, but it appears to have had no discrimination overtones. (See Findings of Fact 31 and 34.) Assistant Superintendent Parkins, who was Petitioner’s direct line senior supervisor, denied Petitioner’s grievance about her rating as untimely, but Petitioner did not demonstrate any specific negative personnel action resulting directly from Singleton’s evaluation. There is no evidence that this rating reflected that Petitioner was ever tardy or had unexcused absences. (P- 24, 25). After her termination in September 2004, Petitioner wrote the Governor stating that she had complained to Parkins in March 2004, about his attempt to switch her to a shift which would have interfered with her college classes and that Parkins was hostile about her going to college (P-36), but at hearing she presented no credible evidence that such an attempt by Parkins had ever occurred or that she had ever complained to anyone about such an attempt prior to her termination. Additionally, Petitioner was consistently assigned to the 11:00 p.m. to 7:00 a.m. shift she had requested until September 2004. (See Findings of Fact 31-35, 55, and 75, and Conclusion of Law 81.) In late February 2004, Petitioner complained because Newman, the assistant superintendent most concerned with timesheets, had inquired of a middle-level supervisor why Petitioner had been absent on a specific day. The testimony about this incident is so sparse, disjointed, and inconclusive that the undersigned cannot determine whether Petitioner also filed any type of grievance about Newman’s inquiry, but again, Petitioner’s complaint does not seem to have had anything to do with discrimination. (See Findings of Fact 31, 34.) In any case, Newman was apparently satisfied when informed by Cohen that Petitioner had been on pre-approved leave, and Petitioner did not suffer any detrimental personnel action specifically as a result of Newman’s inquiry. (Cf. Findings of Fact 74-75.) During the first week of April 2004, Petitioner tendered a letter of resignation to Bessette, which Bessette reluctantly accepted. Bessette testified that the only reasons Petitioner gave for this resignation were personal ones unrelated to discrimination. Petitioner did not testify otherwise. A short time later, Petitioner reconsidered her decision, and Bessette accepted Petitioner’s rescission of her resignation in such a way that Petitioner suffered no lapse in her career service. (R-5). From April 13, through July 25, 2004, Bessette took extended medical leave. During Bessette's absence, Assistant Superintendent Charles Parkins assumed the role of “Acting Superintendent.” At all times material, Shirley Edmond (Negro female) and Bruce Perry (Negro male) were employed by ARJDC as middle level supervisors. They supervised the JDOs and SJDOs assigned to their shift(s). At ARJDC, there are three shifts around the clock. SJDOs and JDOs at the facility are assigned to work shifts. In order to maintain an appropriate minimum correctional officer- to-juvenile detainee ratio, and in order to ensure the safety and security of staff, juveniles, and the community, SJDOs and JDOs are subject to having their shift assignment rotated or changed. Also in order to prevent the facility from operating below minimum staffing levels, JDOs and SJDOs may be required to “holdover” or continue working into the next shift when asked to do so as a result of on-coming staff members’ tardiness or absence. As a result of minimum staffing level requirements, ARJDC's operating procedures address the issue of tardiness and identify three instances of tardiness in any rolling 90-day period as “excessive.” (R-17). ARJDC’s operating procedures also address absenteeism. The required procedure for “calling in sick” requires employees seeking approved leave to contact the on-duty officer or acting supervisor at least two hours in advance of the employee’s report time, and further requires that thereafter, the employee also speak to the shift supervisor and discuss the employee's return-to-work date. Medical verification may be required by the Employer for absences in excess of three consecutive days. (R-17). Upon her hire, and again in June 2004, Petitioner was made aware of, and was provided with, a copy of the Employer’s policies and procedures with regard to absenteeism and tardiness. (R-3, 19). From May through June or early July 2004, Petitioner, Perry, and Edmond all worked the 11:00 p.m. to 7:00 a.m. shift. During these months, both Perry and Edmond observed that Petitioner frequently arrived late for her shift, that is: more than one minute after 11:00 p.m., which is the grace period allowed by the facility’s policies and procedures. (R-17). On one occasion, Perry spoke to Petitioner about her tardiness. Petitioner attributed her tardiness to problems with her babysitter. At all times material, Petitioner was aware of the Employer’s policy against, and procedures for reporting, discrimination or sexual harassment. These procedures are given in numbered paragraphs, but are not referred to as “steps.” They permit Petitioner to involve the internal EEOC officer and the Employer’s hierarchy outside the facility. (R-4). On June 25, 2004, while he was her shift supervisor, Bruce Perry wrote Petitioner a counseling memo concerning her tardiness on June 1 and 25. She received the memo on July 13, 2004. (P-15). Shirley Edmond testified that July 22, 2004, Petitioner threatened her as set out in greater detail in Findings of Fact 68-72 infra, concerning Bruce Perry’s counseling memo. On or about July 16, 2004, Petitioner filed what was described as a “departmental grievance” against Perry’s counseling memo(s).2/ This grievance could have been brought pursuant to a union collective bargaining agreement or pursuant to Section 110.227(4), Florida Statutes. However, that statute provides a "two-step" grievance procedure only for career service employees who are no longer on probation in their current position, and it excludes consideration of both "discrimination" and "sexual harassment" issues, which are supposed to proceed through superiors and the EEOC officer. Due to her probationary status as SJDO, Petitioner would have been ineligible to pursue the statutory grievance. In any case, her grievance did not raise issues of sexual discrimination or sexual harassment (P-38), nor was it directed to an internal EEOC officer. On or about July 17, 2004, Petitioner sent an e-mail letter outside the facility to the Assistant Superintendent for Detention Services, Perry Turner. Respondent's discrimination and sexual harassment procedures permitted this. However, in the e-mail Petitioner complained in general terms that she was experiencing problems getting facility personnel, particularly Charles Parkins, to follow all the "steps," in appropriate sequence, of established grievance procedures. (P-39). Turner, who oversees all detention facilities and services statewide, and whose office is in Tallahassee, delegated responsibility for investigating Petitioner's complaint to Operations Manager Richard Bedson, who supervises all of the detention branches’ support services. Mr. Bedson had recommended Petitioner for her promotion to SJDO and for a raise in connection therewith, but they did not know each other. (P-17). He was not housed in her facility. He was entirely independent from ARJDC staff. On July 19, 2004, Perry rescinded his counseling memo to Petitioner (P-12), because it had been shown to Parkins that Perry was not on the same shift with Petitioner on June 25, 2004 (P-13), and/or that on June 25, 2004, or the other date cited in Perry’s memo (June 1, 2004), Petitioner had prior permission from a different supervisor to “back down” her hours so as to legitimately arrive late for her shift (P-39). Perry’s testimony herein confirmed that for one of the days cited in his counseling memo, he had relied on someone else’s observation of Petitioner’s tardiness, and that he, himself, had not seen that particular tardy arrival. In any case, a counseling memo is not considered a disciplinary memo, and Perry’s memo stated that fact. (P-15). A counseling memo does not begin the three-tier progressive discipline that could lead to termination of a permanent employee for cause, and Perry’s counseling memo was rescinded, anyway. Petitioner acknowledged that the offending memo was rescinded after she complained about it. Despite the happy outcome for Petitioner of her grievance about Perry’s counseling memo, Petitioner claimed at hearing that everything that happened to her after February 2004, was the result of Parkins’ retaliation against her for filing the first evaluation grievance which Parkins had ruled was untimely (see P-12, 14, and Finding of Fact 10) and/or because Parkins and Perry were retaliating against her for grieving Perry’s alleged sexual harassment of her. At hearing, Petitioner testified that from late May 2004 to June or July 2004, Bruce Perry made suggestive remarks to her about her lips and buttocks; made comments designed to make others infer that Petitioner and Perry were sexually involved; put his hands on her shoulders; and rubbed his privates in her presence. She claimed that she rejected Perry and reported these unsavory and harassing activities to superiors Parkins (male), Singleton (male), Smith (female), and Cohen (female), and that thereafter, Perry created a hostile and retaliatory workplace for her. She also related that Freda Smith, a middle level supervisor, had promised to report Petitioner’s complaint of sexual harassment by Perry to Parkins. None of the foregoing supervisors Petitioner named corroborated that Petitioner had reported any sexual incident with Perry to them. Of the supervisors Petitioner named, only Parkins actually testified, and he denied that either Petitioner or Freda Smith, on Petitioner’s behalf, had made any such report to him. (R-20). Bruce Perry denied in writing, when the issue was first raised after Petitioner’s termination, and in his testimony herein that he had committed any of the acts of which Petitioner accused him. (R-7). Interestingly enough, although Parkins and Perry both denied any knowledge of Petitioner reporting Perry to Parkins, Petitioner personally testified that when she had reported Perry to Parkins, Parkins removed her from the area physically near Perry and later removed Perry from her shift altogether, so as to separate them. Perry confirmed that he only worked with Petitioner "a couple months" until he was removed from her 11:00 p.m. to 7:00 a.m. shift. When, precisely, Perry was removed from that shift is not clear on this record. Petitioner testified that she needed larger pants for her correctional officer’s uniform, to accommodate the knee brace she sometimes needed to wear for her prior military injury, and that Perry had remarked that her pants were all right, in connection with his comments about her buttocks. Perry denied making any suggestive remarks. No other witness noticed a problem with Petitioner’s uniform pants or that Petitioner was in any manner unable to do her job, due to her knee or for any other reason, until she had a shoulder injury on August 4, 2004, as described infra. However, Petitioner testified that Parkins told her to get a doctor’s note stating that she needed the knee brace. Petitioner had admitted in evidence such a note from her doctor dated July 21, 2004, on which she had printed a note to Parkins requesting larger uniform pants and stating she had spoken to Parkins about the larger pants a month before July 21, 2004. This note said nothing about Perry or his alleged sexual comments. (P-11). Petitioner's testimony is not entirely clear as to whether she believed that Parkins refused her request for larger uniform pants, or just ignored it, but since she admitted that she slipped the note under Parkins’ office door when she was told by another supervisor that Parkins would not be in, her delivery system may have failed to get her doctor’s note to Parkins. Parkins testified that he recalled no requests, either oral or written, for bigger uniform pants, but if he had received such a request he would merely have passed it on to the person who was in charge of ordering/issuing property on a regular basis. It is probable the property officer only worked a standard day shift, while Petitioner worked the 11:00 p.m. to 7:00 a.m. shift. On July 25, 2004, Bessette returned and resumed her duties as superintendent of ARJDC. Bessette testified that she knew nothing of any sexual harassment allegations until after Petitioner was terminated in September 2004, and the evidence as a whole shows that Petitioner first approached internal and external EEOC officers about sexual harassment only after she was terminated. (R-7, P-26,36) Moreover, in late July, Petitioner had every opportunity to speak to the Employer’s non-facility personnel to resolve any alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, or problems concerning being denied a reasonable accommodation for her alleged knee “handicap,” but she did not do so. In late July, Operations Manager Richard Bedson telephoned Petitioner at the facility and asked if he could speak to her about the concerns she had expressed in her letter to Assistant Superintendent for Detention Services, Perry Turner. (See Finding of Fact 26.) Petitioner refused to speak to Bedson over the phone about her e-mail to Turner or her concerns, stating she did not know who Bedson was and she was not going to speak to him unless someone else on the phone vouched for him. Bedson then arranged to meet with Petitioner, personally. (P-39). Discrimination investigations, particularly those involving sexual matters, are best begun by a discreet meeting between the investigator and the complainant alone, but Petitioner had not told Mr. Bedson what her problems were, and her memos had referred to “step” grievance procedures which are a union device. The use of the word "step" could also have referenced the Section 110.227(4) procedure which, by its nature, could not deal with "discrimination" or "sexual harassment." (See Finding of Fact 25.) Petitioner also had declined, via e-mail, to come to Bedson's office in another city unless she received per diem travel pay, and had stated that she preferred to meet at ARJDC. (P-39). Therefore, Bedson held a meeting on July 30, 2004, with Petitioner, Bessett, Parkins, and Petitioner's union representative, Mr. Reeves, who is a teacher from outside the facility. Bedson chaired the meeting and asked Petitioner to relate her concerns regarding her treatment at ARJDC. At no time during the July 30, 2004, meeting did Petitioner indicate she was being, or had been, sexually harassed; that she or anyone else was the subject of any type of disparate or preferential treatment; or that she had a knee injury that was not being accommodated. She did not state that she was entitled to preferential treatment by virtue of being a veteran. She did orally accuse Parkins of practicing undefined retaliation against her. However, she refused to discuss anything more and stated she would put her concerns in writing. Bedson informed Petitioner that he would request that an investigator meet with her as quickly as possible so that an investigation could occur. He then concluded the meeting. After this meeting, Bedson telephoned Operations Management Consultant II James Darbin Graham, who is assigned to Respondent Department’s North Region Office. He directed Graham to meet with ARJDC staff and Petitioner to determine what Petitioner’s concerns were and to conduct an investigation as necessary. Bedson recounted to Graham his earlier meeting with Petitioner, her prior e-mail, her general allegation of "retaliation" by Parkins, and her refusal to provide any further explanation. On August 4, 2004, while working the 11:00 p.m. to 7:00 a.m. shift, Petitioner injured her shoulder opening a door. She left the facility for the hospital. After treatment at the hospital, she returned to the facility at approximately 5:00 a.m. with hospital paperwork for facility administrators so that she could obtain workers' compensation benefits, including medical care, disability pay, and leave. On this same morning, Graham arrived, unannounced, at the facility at approximately 6:00 a.m. to meet with Petitioner. He was advised that she had left for the hospital, but then he spotted her in the ARJDC lobby. Petitioner was wearing a hospital gown, and her arm was in a sling. Graham introduced himself to Petitioner and advised that he needed to speak to her. Petitioner refused to speak to him, stating she was on medication and that he would have to make an appointment so that she could have her union representative at the meeting when she was not feeling the effects of the medication. In order to be able to arrange such a meeting, Graham advised Parkins that he needed to speak with Petitioner upon her return to work from medical leave. From August 4, 2004 onward, Parkins did not arrange such a meeting or notify Graham when such a meeting could occur. Graham concluded this was because of Petitioner’s extended absence and subsequent termination, effective September 8, 2004. As a result of her on-the-job shoulder injury, Petitioner was immediately placed on workers’ compensation leave. The parties agree that Petitioner was entitled to all workers’ compensation benefits, including medical care, leave, and pay, from August 4, through August 10, 2004. It is the two periods of August 10, to August 19, 2004, and August 20, to September 8, 2004, that drive this case. Assistant Superintendent Newman maintains and processes paperwork related to workers' compensation for the facility. On August 10, 2004, Petitioner’s medical physician released Petitioner to return to work with the following restrictions and medications: Employee is to avoid all use of affected arm. . . . Avoid lifting, reaching, grasping with right arm only. Physical therapy ordered. Stop percocet and discontinue sling. The following medication(s) has (have) been prescribed: Naproxen . . . Effects include . . . dizziness Metaxalone . . . May cause drowsiness Cyclobenzaprine . . . common side effects include drowsiness, decreased judgment, . . . blurred vision . . . caution should be exercised when driving or operating dangerous equipment Tramadol . . . May cause sedation . . . Use caution when driving or operating dangerous machinery. (Emphasis supplied) (R-2). Petitioner received a copy of the foregoing document, as quoted supra. It is probable that the Employer’s independent workers’ compensation contract carrier, “Covel”, also received a copy, but there is no evidence this detailed document was presented to anyone at ARJDC. However, ARJDC was made aware of its medical restrictions on use of Petitioner’s arm. “Master Control” is the only light duty available at ARJDC. It has always been used for situations such as Petitioner’s, and is the only “accommodation” Respondent has available. Master Control is a desk assignment away from juvenile detainees, which requires only monitoring cameras, answering telephones, and pushing buttons, but which has no potential for strenuous restraint of, or harm from, detainees. Petitioner was advised on August 10, 2004, that the facility could accommodate her doctor's restrictions of modified duty by assigning her to Master Control. However, Petitioner did not report to work for nine more days, or until August 19, 2004.3/ Petitioner also did not obtain authorization for her absence August 10-19, 2004, using the methods required by the Employer’s policies and procedures. (See Findings of Fact 16- 18.) Instead, Petitioner reached Parkins by telephone on August 10, 2005, and told him that her medications were making her too drowsy and dizzy to drive. Parkins took what Petitioner told him at face value. He was concerned about Petitioner’s safety and the Employer’s liability. He told her not to come to work until she could drive or could see her doctor. Petitioner followed up on their conversation by faxing Parkins, that same day, a written explanation that she was on four medications and that three out of the four medications, which she did not name, were causing her symptoms. (P-34). Petitioner’s next doctor’s appointment was not until August 19, 2004, so she did not report to work until after that appointment. Although her physical restrictions diminished over time, from August 4, 2004, until October 20, 2004, Petitioner’s workers’ compensation physician continued to prescribe one or more medications for Petitioner which could have rendered her dizzy or drowsy. (P-10, 32). However, there is no evidence this information was sent to ARJDC, even though it probably was sent to the independent workers’ compensation contract carrier, Covel. Petitioner did not work the full 11:00 p.m. to 7:00 a.m. shift in Master Control on August 20, 2004. Upon her placement in Master Control early, at about 10:30 p.m., on August 19, Petitioner immediately complained of pain in her shoulder and drowsiness from her medications. After she was observed with her head on the table, she was sent home by her supervisor. She had been present on the jobsite about an hour. Petitioner called in on August 21, 2004, at midnight (an hour after she was due to report for her shift), to say she had just awakened, was in a lot of pain, and would not be reporting to work. Petitioner did not follow proper procedures in reporting this absence. (See Findings of Fact 16-18.) Petitioner's regular days off work fell on August 22, and 23, 2004. On August 24, 2004, Petitioner still did not report to work and did not call the facility, as required by Respondent’s policies and procedures. On August 24, 2004, Assistant Superintendent Newman received a call from Julie Bumgardner of Covel, who wanted to be sure that the facility was accommodating Petitioner’s workers’ compensation shoulder injury with an appropriately restricted work assignment. When Newman indicated that Petitioner continued to be absent due to drowsiness associated with her medication, Bumgardner advised Newman that the medications Petitioner was currently prescribed for her workers' compensation injury did not contain narcotics to make her drowsy and Petitioner should have returned to work on August 10, 2004, with the accommodation for her arm as previously stated. Bumgardner faxed Newman either an incomplete copy of the August 10, 2004, physician's order, which did not mention the four drugs which could have been making Petitioner dizzy or drowsy between August 10-19, 2004, but which did say to discontinue percoset, and/or a separate document showing that the narcotic percocet had been discontinued by the physician on August 10, 2004, and which listed the other four drugs, but not their side effects. (R-8). As a result of this incomplete and therefore misleading information, Newman and Bumgardner concurred that any of Petitioner’s absences after August 10, 2004, should be charged against Petitioner’s accrued sick and annual leave and should not be categorized as workers’ compensation leave. Petitioner was credited with working eight hours on August 25 and eight hours on August 26, 2004. On August 26, 2004, Newman wrote a memo to Petitioner advising her that effective Friday, September 10, 2004, Petitioner was being temporarily reassigned to the 7:00 a.m. to 3:00 p.m. shift in Master Control. The memo explained to Petitioner that Newman's purpose in this reassignment was to further accommodate Petitioner by assigning her to Master Control during the day shift when another employee, also assigned to this same station, could assist Petitioner if Petitioner needed assistance. By writing the memo on August 26, and not making the assignment change effective until September 10, Newman intended to give the customary two weeks’ notice so that Petitioner could arrange her personal life to fit the change of shift. When she wrote this memo, Newman should have, but did not, realize that Petitioner was taking morning classes. When she received this memo on August 26, 2004, Petitioner believed that she was entitled to never be reassigned to a shift that did not accommodate her college classes. She refused to sign, acknowledging receipt of the memo. Petitioner wrote the following on the bottom of Newman’s memo: I am confused about this letter because of the last letter I received from D.S. Bessette. I cannot sign this at this time. You must have me confused with SJDO L. Green. She’s the one with the shift ch[ange].(R-10) In her routine review of employee timesheets, Newman had noted that Petitioner had not signed her timesheet covering August 13, 2004, through August 26, 2004, and that Petitioner had claimed “leave without pay: code 60”, signifying that she expected to receive workers’ compensation disability pay and not be docked any sick or annual leave for that period of time. On August 27, 2004, Newman issued a memo to Petitioner's immediate supervisor, Wilcox, requesting that Wilcox address with Petitioner the incorrect coding Petitioner had written into her timesheet covering the dates of August 13, through August 26, 2004. (P-33). Ms. Newman also wrote across Petitioner’s first timesheet (see Finding of Fact 57), in red ink, advising Petitioner: Ms. Francis you need to recode your leave to 52-sick and resubmit w/ signature. According to your doctor’s note you should have assumed work duties on the 10th of August. (R-12) Workers’ compensation pay does not begin until a specified time after the compensable accident. Many employers, including this one, have an elaborate system in place to pay an employee full salary and adjust leave categories of accrued sick and annual leave to make up the difference between the workers’ compensation rate and the regular pay rate, instead of paying the employee just the lesser amount permitted by the workers’ compensation statute. However, neither of those considerations was afoot here. Here, despite Newman’s testimony as to “the first 40 hours of workers’ compensation coverage,” the exhibits clearly reveal that Newman was attempting to get Petitioner to use her accrued sick leave to cover any time she had been absent from work after August 10, 2004. Because of her conversation with, and the incomplete materials supplied by, Bumgardner, Newman believed this was the correct way to code Petitioner’s timesheet. (See Findings of Fact 49-53.) When she received Newman’s August 27, 2004, memo to Wilcox, that same day, Petitioner responded to it by writing a note on the bottom in which she stated that she was not going to use sick leave; that she had permission from Parkins for her August 10-19, absence; that she was on four different “meds”; that her arm became swollen when she did come in on August 19; and again that she would not use sick time for an on-the-job injury that Newman refused to accommodate. Petitioner then finished with I am so sick and tired of the inconsistency and lack of communication among the management team. . . . You all need to stop this please. (P-33) Petitioner’s adamant and belligerent attitude did not sit well with Newman who, based on the information provided by Bumgardner, believed she was just doing her duty. On September 2, 2004, Newman came in at 6:00 a.m. to talk to Petitioner before Petitioner went off her shift at 7:00 a.m. Petitioner insisted on being confrontational with Newman in front of staff, instead of coming to Newman’s office as Newman requested. Petitioner adamantly refused to change the first timesheet or to sign it. (R-14). She stated to Newman that she had relied on Parkins’ oral authorization to be on workers’ compensation leave from August 10, to August 19, 2004. She later submitted a new, typed timesheet, still claiming “Code 60-workers’ comp. disability” for each of her scheduled work days between August 13, and 24. This version she signed. (R- 13). Newman caught up to Petitioner as Petitioner was checking out at the time clock on September 2, 2004; handed her a copy of the August 26, 2004, memo (see Finding of Fact 55); and inquired if Petitioner would be reporting as previously ordered to the 7:00 a.m. to 3:00 p.m. shift on September 10, 2004. Petitioner stated she could not make the change due to her babysitter and previous registration for college classes. She continued to rely on Parkins’ oral authorization for August 10-19, and apparently expected workers’ compensation considerations for her absences after August 19, 2004, as well. (R-14). Newman never received corrected timesheets from Petitioner, despite explaining the situation to someone from Petitioner’s union who telephoned Newman and offered to act as an informal intermediary. Finally, in order to get Petitioner paid on time, either Newman or Parkins filled out a timesheet covering August 13 through August 26, 2004, and signed for her. Petitioner ultimately was charged sick leave from August 10-20, 2004, and was declared absent without authorization for August 21 and 24, when she had not followed the prescribed procedures for an authorized absence. (See Findings of Fact 49 and 51.) This meant that Parkins had retroactively withdrawn his oral authorization for Petitioner to take workers’ compensation leave for August 10 through August 19/20, and that Respondent viewed Petitioner’s absences on August 21 and 24 as unexcused. From the way this case was presented, it is difficult, if not impossible, to pinpoint when Petitioner did, and did not, report for duty after August 26, 2004. For instance, Petitioner insisted that she was not scheduled for duty on September 3, 2004, because that was the date of Hurricane Frances. She also claimed she could not work on September 3, 2004, because that was a day on which lack of accommodation the night before had caused her arm to swell. (See Finding of Fact 68.) Parkins confirmed that he did not schedule any “light duty” officers, of which Petitioner was one, for duty during Hurricane Frances, but he did not know the date of Hurricane Frances. Another witness thought Hurricane Frances had occurred in August 2004. If Hurricane Frances occurred on August 3, 2004, instead of September 3, 2004, then all such testimony is irrelevant because Petitioner's arm was not injured until August 4, 2004. There is documentation and testimony from Newman and Petitioner that Petitioner worked September 2, rolling into September 3, 2004. (See Finding of Fact 68.) Other dates Petitioner worked are equally confused or obscure, but Petitioner claims she worked August 25-28; was off on August 29-30; and contradicts herself that she was, or was not, scheduled to work on August 31, 2004; and was, or was not, scheduled to work on September 3, 2004. (See, infra.) However, both Petitioner and Edmond agree that on September 2, 2004, Edmond assigned Petitioner to a regular duty post. Edmond claims the assignment was a pure mistake on her part. Petitioner complained, via a 6:05 a.m. September 3, 2004, e-mail to Bessette, Newman, and Parkins, that her arm was swollen because of Edmond’s mis-assignment. (R-18). Petitioner’s e-mail also asserted that the Employer was not accommodating her work restrictions from her workers’ compensation doctor and that she was unable to come in to work that night due to her swollen arm. On September 3, 2004, at 11:35 a.m., about five-and-a- half hours after Petitioner’s complaint about Edmond’s assignment of her to regular duty on the 11:00 p.m September 2, to 7:00 a.m., September 3, 2004, shift, Edmond provided Bessette with a written statement, via e-mail, relating that on July 22, 2004, Petitioner threatened to "take her [Edmond] down." Edmond testified that shortly after receiving Perry’s June 25, 2004, counseling memo, Petitioner had called Edmond into a courtyard area at the facility to discuss her tardiness and her belief that management was tracking her tardiness. Respondent had always tracked its employees’ tardiness but had recently added a new method of keeping track. Petitioner referred to management’s tracking of her tardiness as "foolishness." Petitioner told Edmond not to engage in such behavior or Petitioner would “take her down" with the rest of management. Edmond claims to have acknowledged the incident to her immediate supervisor, Wilcox, on the same night it occurred. Wilcox was not called to corroborate Edmond’s testimony, and Edmond did not memorialize the event in writing until September 3, 2004, when she felt her job was being threatened by Petitioner’s September 2, 2004, memo of complaint. (See Finding of Fact 68.) Edmond testified that she also notified Bessette on September 3, 2004, about the July 22, incident because she believed that Petitioner was using codeine on the job. There is insufficient credible evidence to substantiate Edmond's testimony about codeine. It is more likely that Edmond related the story about July 22, 2004, to Bessette in retaliation for Petitioner's complaining that her workers’ compensation injury was not being accommodated by Edmond. The fact that Edmond also kept the July 22, 2004, incident to herself for six weeks renders the truth of her whole testimony suspect. However, that does not mean that Edmond's superiors had reason to disbelieve her September 3, 2004, accusation. Since August 24, 2004, Parkins and Newman, in reliance on Bumgardner, believed that Petitioner was using a narcotic drug (percocet) which her doctor had told her to discontinue on August 10, 2004. They were unaware that some of the other drugs legitimately prescribed by Petitioner’s authorized workers’ compensation physician might have caused the drowsiness and dizziness that had kept Petitioner from reporting for work between August 10 and August 19, 2004, and sporadically thereafter. (See Finding of Fact 53.) After Julie Bumgardner’s mis-information had been received on August 24, 2004, and continuing onward, Superintendent Bessette received reports from Newman, Parkins, and Edmond about Petitioner’s tardiness problems. It is not clear what instances of tardiness besides those occurring after August 10, 2004, were actually reported to Bessette. It is probable that both Newman and Parkins had an overall impression that Petitioner had frequently been tardy over the whole period of her employment at ARJDC, and it is possible, but not proven, that the rescinded Perry counseling memo (see Findings of Fact 23-27) was remembered or utilized. However, tardiness was only part of Bessette’s considerations. Bessette was also apprised of Petitioner's incorrectly coded timesheets and adamant attitude that she would not use sick leave to cover time off. Petitioner’s belligerency toward Newman and her attitude that everyone was “out to get her” aggravated the situation. Bessette considered Petitioner's refusal of Newman’s direct order to correct her timesheets to be insubordination. Parkins and Newman believed, however erroneously, that Petitioner was taking the narcotic percocet, contrary to her doctor’s instructions. Parkins may also have believed and resented that his oral authorization to Petitioner for leave August 10-19, had been obtained by fraud. The report to Bessette of a threat against Edmond was the last straw. Upon the mounting objections to Petitioner’s job performance, and based on a consensus of Newman, Parkins, and herself, Bessette determined that discipline was appropriate and requested authorization from her superiors to terminate Petitioner, which they granted. Petitioner was terminated by a September 8, 2004, letter, effective that date, stating that her termination was because of . . . your failure to satisfactorily complete your probationary period . . . . (P-9) Petitioner proved that ARJDC SJDO Genevieve Hazelip (Caucasian female), Respondent’s employee since 2000, was disciplined in the position of SJDO on one occasion in January 2005, after Petitioner was terminated. This was an oral reprimand for “a conversation with racial undertones, regardless of intention". (R-15). The oral reprimand of Hazelip was only stage one of the Employer’s three-stage progressive disciplinary system, which could lead to termination of a permanent employee at the third step. If Hazelip was on probation in her SJDO position, the Employer did not have to go through the three steps to terminate her, but it was not proven that Hazelip was on probation when she received the oral reprimand. Petitioner also proved that Hazelip was disciplined on two other occasions but was unable to establish whether these disciplinary actions occurred while Hazelip was a JDO or an SJDO or what level of discipline was imposed either time. At hearing, Petitioner claimed that Caucasian officers at ARJDC regularly got weekends and other coveted days off and Negro officers did not. She submitted nothing to substantiate this allegation, but admitted that there were more Negro officers than Caucasian officers and that she had never complained about the shift assignments because she was not dissatisfied with her own days off. It also may be reasonably inferred that Petitioner was not privy to any requests by other officers, Caucasian or Negro, for what shifts or days they wanted to work.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2006.
The Issue The issue is whether Respondent, Ideal Security Services, Inc. (“Respondent or Ideal”), retaliated against Petitioner, John Mercurio (“Petitioner”), for exercising his right to file a complaint on an alleged unlawful employment practice pursuant to section 760.10, Florida Statutes (2019).1/
Findings Of Fact Ideal is an employer as that term is defined in section 760.02(7). While the exact number of employees is not reflected in this record, the evidence established that Ideal employs greater than 15 employees. Ideal provides security officers to different locations for access control and on-site patrol. Petitioner worked for Respondent as a security officer from June 20, 2018, through February 7, 2019. At the time he was hired by Ideal, Petitioner was informed in writing of the company’s “Interchange” practice, which provides: Although employees generally are hired to work at one specific client location or facility, the company (Ideal Services, Inc.) uses its Guard Force INTERCHANGEABLY to meet its needs: In case of cancellation of any accounts, reduction or increase in hours provided, or an employee who may request a transfer. Also Ideal Services, Inc. wishes to point out that they DO NOT guarantee a full 40 hour work week. Overtime is given to employees depending on where the overtime will occur and the availability of employees to work an assignment. Ideal Services, Inc. wishes to also point out that hourly pay rates will depend on job placement as some client assigned jobs will carry higher pay rates than others. It is therefore Ideal Services, Inc.’s policy to inform all individuals who are applying for employment that Ideal Services, Inc. DOES NOT HIRE for only one site at one set pay rate . . . because both of these are subject to change. On the date he was hired, Petitioner signed a copy of the above policy statement, acknowledging that he had read and understood its contents. Petitioner’s first assignment was to provide security at a Krispy Kreme Donuts retail location, an assignment which carried a pay rate of $9.50 per hour. In July 2018, Petitioner was assigned to several other locations, in addition to the Krispy Kreme location. Those new locations were at Daytona Beach Housing Authority apartments, including the Maley, Windsor, and Trails apartment complexes. The public housing assignments carried a pay rate of $8.50 per hour. As of August 2018, Petitioner was no longer assigned to the Krispy Kreme location, but rather was working exclusively at the public housing locations. In December 2018, another Ideal security guard was newly assigned to the same public housing complex as Petitioner. It was clear to Petitioner that this individual was a racist based on his words and actions. While standing next to Petitioner, the new security officer referred to the building residents as "monkeys." It was clear to Petitioner that this remark was made in reference to the African-American residents of the complex. Dan Montrose, the senior security officer and Petitioner’s partner, was also within earshot when the newly assigned officer made the derogatory remark. Petitioner was stunned by the racist comment, especially since Mr. Montrose’s wife is an African-American female. Petitioner also testified that on another occasion, the new officer posted a picture of a Caucasian baby on the common area's fridge with an arrow that said, "Dan" on it, as well as a black finger/arm covering the baby's mouth which said, "Dan's wife." While Petitioner’s first impulse was to report the above racist incidents to his employer, at the request of Officer Montrose he did not immediately do so. However, while the exact date of the conversation is not of record, sometime in the second or third week of December 2018, Petitioner reported the “monkey remark” to Ideal’s Manager and CFO, Diane Cox. Ms. Cox assured Petitioner that she would discuss the racist comment with the offending security guard. Ms. Cox testified that the offending security guard was given a verbal warning for his inappropriate comment, but was not otherwise disciplined because he had worked for the company for many years without incident. When Ms. Cox spoke with the offending security guard about his inappropriate remark, she did not raise the issue of the racist picture that had been posted on the common area refrigerator. According to the testimony of Ms. Cox, this is because she had not been informed by anyone about the existence of the picture, and first became aware of it when she read Petitioner’s Complaint. Ms. Cox testified that had she been informed of the racist picture, disciplinary action would have been taken against the offending employee. Again, while the exact date is not of record, sometime in late December 2018, Petitioner requested a copy of his payroll records from Ms. Cox. While gathering the records for Petitioner, Ms. Cox discovered that Petitioner’s rate of pay had erroneously not been reduced from $9.50 per hour to $8.50 per hour when he was transferred from the Krispy Kreme location to the public housing locations. Upon discovering this accounting error, Ms. Cox informed Petitioner that effective immediately his rate of pay while on duty at the public housing locations would be adjusted to $8.50 per hour, but that Ideal would not be attempting to recoup the overpayments that had been made over the previous months, since the error had been theirs. Respondent offered in evidence payroll records which demonstrated that all Ideal security guards assigned to the public housing locations were paid at the rate of $8.50 per hour. At about the same time as Petitioner’s downward rate adjustment, another Ideal security guard requested that he be assigned an additional eight-hour shift in order to bring him to 40 hours per week. In an attempt to accommodate this request, Ms. Cox contacted several of the Ideal security guards, including Petitioner, to inquire as to whether any wished to relinquish an eight-hour shift. Petitioner advised Ms. Cox that he did not want to give up an eight-hour shift, and that request was honored by Ideal. The timing of Petitioner’s reporting of the racist remarks to Ms. Cox; Petitioner being informed that his hourly rate was being reduced; and Petitioner being invited to give up a work shift; is unfortunate. Because of the temporal proximity of these events, it is understandable that Petitioner concluded that the reduction in his pay rate and attempted reduction in his assigned hours were in retaliation of his reporting the racist remarks. However, the evidence does not prove a causal link between Petitioner's complaint and the adverse action he suffered. Rather, the credible testimony of Ms. Cox established legitimate nonretaliatory reasons for how Petitioner was treated, and there is no evidence that the reasons articulated by Ms. Cox were a pretext for retaliation. Petitioner failed to persuasively prove any incidents of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Ideal Security Services, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of January, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2020.
The Issue Whether Petitioner, Paul Rancourt (Mr. Rancourt), established through clear and convincing evidence his actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act, chapter 961, Florida Statutes (2011).1/
Findings Of Fact Before discussing the findings from the administrative hearing, it is appropriate to set out the procedural history of the criminal proceedings. On December 18, 1996, the State charged Mr. Rancourt and Daniel McLean (Mr. McLean) with the kidnapping and three counts of sexual battery of A.S., which occurred on October 31, 1996. On July 27 through July 30, 1998, the State tried Mr. Rancourt and Mr. McLean together. The jury convicted both men, and the trial court sentenced Mr. Rancourt and Mr. McLean to life imprisonment on each count with the sentences to run concurrently. On April 5, 2000, the Second District Court of Appeal issued an opinion overturning Mr. McLean's conviction based on trial errors. McLean v. State, 754 So. 2d 176 (Fla. 2d DCA 2000). The appellate court reversed Mr. McLean's conviction for kidnapping because it found that the State "failed to prove [McLean] intended the kidnapping to occur, or that he performed any action that assisted in the kidnapping." Id. at 180. Further, the appellate court found that the trial court erred in two key evidentiary rulings. First, the trial court erred in allowing the State to elicit testimony from the medical provider who examined A.S. following the assault. The disputed question was: "[d]id she act in any way inconsistent with the way a rape victim would act?" Id. at 181. The appellate court found that the prejudicial effect of the expert testimony substantially outweighed its probative value. Id. Second, the trial court erred in excluding testimony under the Rape Shield Statute.3/ Id. Specifically, the trial court erred in not allowing Mr. McLean's attorney to cross-examine the medical provider about whether or not the A.S.'s soreness in her vulva area was due to the fact that she had not had sexual intercourse in the past year, as opposed to a sexual battery. Id. The appellate court found that this question went to a key issue of whether the sexual contact was consensual. The appellate court found the exclusion of this testimony was not harmless error; and thus, reversed Mr. McLean's convictions and sentences, and ordered a retrial. On January 5, 2001, Mr. McLean, pursuant to a plea agreement, pled nolo contendere to one count of sexual battery, section 794.011, Florida Statutes (1996). Based on the plea agreement, Mr. McLean was sentenced to 64 and one-half months’ incarceration, which reflected his time served, and two years’ probation. On June 14, 2000, the Second District Court of Appeal affirmed Mr. Rancourt's convictions for sexual battery and kidnapping, and his life sentences. Rancourt v. State, 766 So. 2d 1071 (Fla. 2d DCA 2000). In affirming Mr. Rancourt's conviction, the appellate court found that trial counsel had failed to preserve the issues concerning the medical expert's opinion vouching for the victim's credibility and the exclusion of the medical testimony under the Rape Shield Statute. On September 13, 2000, the appellate court issued its mandate. On September 10, 2002, Mr. Rancourt filed a post- conviction motion alleging ineffective assistance of counsel. Notably, Mr. Rancourt's post-conviction motion alleged, in part, his trial counsel was ineffective for failing to preserve the evidentiary issues that had formed the basis of Mr. McLean's reversal. On November 3, 2003, the circuit court entered an order vacating Mr. Rancourt's convictions and sentences "after considering the Motion and applicable law, and upon agreement of both parties[.]" The order directed that a new trial be held. On September 27, 2005, the State re-tried Mr. Rancourt for sexual battery and kidnapping. The jury convicted Mr. Rancourt of the lesser-included offense of battery, section 784.03, Florida Statutes (1996), a first-degree misdemeanor. Consequently, the trial court sentenced Mr. Rancourt to one year in the Polk County jail with credit for time served. On June 25, 2010, Mr. Rancourt filed the Amended Petition for Determination of Wrongfully Incarcerated Person, which is the subject of this hearing. Mr. Rancourt has not been convicted of any other felony in any jurisdiction. At the time of these events, Mr. Rancourt was a 32-year- old man, and A.S. was a 19-year-old freshman at Florida Southern College. Mr. Rancourt, in offering proof of actual innocence, testified on his own behalf that the sexual encounter that occurred between him and A.S. was consensual. Mr. Rancourt's testimony on December 8, 2011, was consistent with the testimony that he had provided in his two criminal trials. Transcripts of Mr. Rancourt's prior testimony at the criminal proceedings were admitted into evidence. Mr. Rancourt's testimony at the hearing concerning his meeting A.S. and the subsequent sexual encounter was not believable. Specifically, the undersigned did not find Mr. Rancourt's description of how a young woman, whom he had never spoken too, would at the closing of the bar grab him at the door as patrons attempted to leave the bar, and give him a "deep french kiss." Further, it was incredulous that after asking him for a ride back to her dorm room that A.S., while in the back seat of the car, would engage in a series of intimate gestures towards himself and his best friend, Mr. McLean. Finally, it was not credible that A.S. and Mr. Rancourt engaged in a consensual sexual encounter as described by Mr. Rancourt on the lawn of a home off a dark street. The conclusion that Mr. Rancourt's description of the events is not credible is further bolstered by the testimony showing A.S.'s actions immediately after the sexual encounter, and Mr. Rancourt's untruthful responses to the police investigation following the events. Mr. Rancourt also offered Mr. McLean, who testified that he witnessed A.S. acting as a "willing participant" in the sexual encounter with Mr. Rancourt. Further, Mr. McLean offered testimony that he did not engage in any sexual relations with A.S., and that he only pled to the sexual battery charge in order to avoid the risk of receiving another lengthy sentence. Next, Mr. Rancourt brought forward the testimony of Brandon Perron (Mr. Perron), a private investigator, and introduced into evidence copies of Mr. Perron's investigative reports. The record shows that Mr. Perron prepared these reports as part of Mr. Rancourt's post-conviction efforts. The reports and Mr. Perron's testimony show that he identified many factual issues regarding Mr. Rancourt's convictions. Specifically, Mr. Perron raised issues concerning discrepancies in A.S.'s statements, testimony, and her motivations to lie concerning the events of October 31, 1996; discrepancies in witnesses' statements to the police investigator and testimony; poor and prejudicial police investigative techniques that overlooked potentially exonerating evidence showing that the sexual encounter was consensual; and defense counsel's failure to conduct an adequate investigation into potential witnesses. Although Mr. Perron was a persuasive witness for showing potential problems with the State's criminal case against Mr. Rancourt, Mr. Perron's testimony did not establish Mr. Rancourt's actual innocence. Mr. Rancourt's final witness was his aunt, Barbara Hoffman (Ms. Hoffman). In October 1996, Mr. Rancourt and Mr. McLean were living with Ms. Hoffman while they sought employment. Ms. Hoffman's testimony concerned Mr. Rancourt's character and her opinion that he was not capable of committing a crime. Further, she testified about the day that law enforcement officers went to her home to ask Mr. Rancourt and Mr. McLean to come in for questioning. She testified that the detective investigating the events had prejudged Mr. Rancourt to be guilty of rape. The purpose of this testimony appeared to show that statements given by Mr. Rancourt and Mr. McLean to the police may not have been voluntary. It is noteworthy that neither Mr. Rancourt nor Mr. McLean was arrested; thus, the questioning was non-custodial. Moreover, Ms. Hoffman's testimony was marginally relevant in that it did not bring forward any fact showing that Mr. Rancourt was actually innocent of the sexual battery and kidnapping charges. The State introduced evidence showing that the sexual encounter was not consensual. A.S.'s trial testimony shows that she consistently testified that the sexual encounter was not consensual. In addition to A.S.'s trial testimony, the State introduced trial testimony of Angie Wren (Ms. Wren) and Issac McKeithan (Mr. McKeithan). The criminal trial transcript shows that Ms. Wren and Mr. McKeithan drove upon A.S. shortly after the event and saw a car quickly drive away from the area where A.S. was standing. Ms. Wren testified that A.S. was hysterical and crying, and "she just didn't look like she had been through anything good, that's for sure." A.S. reported to Ms. Wren and Mr. McKeithan that she had been raped. Ms. Wren and Mr. McKeithan drove A.S. to the Lakeland Police Department immediately, and the attack was reported. This testimony shows that A.S. contended that she had been raped moments after the sexual encounter. Further, a review of the criminal proceedings shows that the State brought forward medical testimony showing bruises on A.S.'s arms. A.S. had testified that, before the attack, she did not have the bruises. Finally, the criminal trial transcripts and testimony given at the December 8 through 9, 2011, hearing showed that Mr. Rancourt and Mr. McLean had provided false statements, and changed the story given to the officer conducting the investigation. Specifically, the trial transcripts, and Mr. Rancourt's testimony on December 8, 2011, showed that he told the investigator at first that he did not engage in sexual relations with A.S., then changed his story to claim that he and A.S. had sex in the vehicle, and then changed his story, yet again, to state that he and A.S. had consensual sex on the front yard of a home off a dark street. During his testimony on December 8, 2011, Mr. Rancourt acknowledged that the statements he gave about not having sex with A.S. and then having sex in the vehicle were false. Similarly, Mr. McLean, when asked if he and Mr. Rancourt had sex, informed the officer "no." Mr. McLean testified that he answered that way because he contended that he had not had sex with A.S. This parsing of words was not credible. The undersigned found these acknowledged false statements, made at the time of the investigation, persuasive evidence that Mr. Rancourt's explanation of the night was not credible.
Recommendation Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Mr. Rancourt has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Mr. Rancourt's claim for compensation, and dismissing his Petition. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2012.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
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 petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
