The Issue The issue in this case is whether Petitioner properly terminated Respondent’s employment as a deputy sheriff for engaging in conduct that violated General Order 3-1.1, Rule and Regulation 5.15, governing the custody of arrestees and prisoners.
Findings Of Fact Admitted Facts Bob Gualtieri is the duly-appointed Sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri’s responsibilities include providing law enforcement services within Pinellas County. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to violate PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 14 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Orders require that PCSO “members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person.” PSCO General Order 13-3.1(A). Respondent used force on an inmate at the Pinellas County Jail on October 1, 2014. A complaint of misconduct was filed against Respondent on or about October 6, 2014. The complaint alleged that on October 1, 2014, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. An investigation was conducted by Petitioner’s Administrative Investigations Division. The investigation record was provided to Petitioner’s Administrative Review Board, which considered the complaint of misconduct and determined that Respondent’s use of force on October 1, 2014, constituted a violation of General Order 3-1.1, Rule and Regulation 5.15. Pursuant to PCSO General Orders, 50 points were assigned to the sustained violation found by the Administrative Review Board. Respondent had 30 carryover points from prior discipline. Pursuant to PCSO General Orders, the 80-point total reverts to 75 points, for which the authorized discipline ranges from a ten-day suspension to and including termination of employment. Sheriff Gualtieri terminated Respondent’s employment with PCSO. Additional Facts Found The central dispute to be resolved is whether Respondent’s use of force on October 1, 2014, was necessary and not excessive, as Respondent contends, or was unnecessary and excessive, as Petitioner contends. On the day in question, Respondent was working as a deputy sheriff in the healthcare division of the Pinellas County Jail. He was stationed at the duty desk located between two “pods”--open housing areas for inmates. At the doorway to one of the pods, a medication nurse was performing “med pass,” i.e., she was passing out medications to inmates from a medication cart. A deputy--not Respondent-- stood in the pod doorway next to the nurse, to supervise and provide security. Inside the pod, near the doorway, a few inmates waited in line for their medication. The deputy supervising med pass, Deputy Pettiford, was also calling the names of some of the inmates in the pod for “sick call,” meaning the inmates were to be taken from the pod to the healthcare clinic. One of the inmates waiting in the med pass line whose name was called for the clinic was Eugene Borkowski, a sickly- looking elderly man in a wheelchair. At the time, he was 63 years old, but he looked more frail and older than someone that age. He had Parkinson’s disease. He had been housed in the healthcare division for months, and had never caused a problem or been involved in a use of force by staff. When Mr. Borkowski’s name was called for sick call, he refused to go. At first, he ignored Deputy Pettiford when she called his name. The deputy called his name a few more times, and he responded verbally, saying, and then yelling, with a sprinkling of profanities, that he was not going to go and that he would have to be dragged down there. Mr. Borkowski’s behavior was verbal only; he remained in place in his wheelchair in line to receive his medication. By all appearances from the video evidence captured on two security cameras, Mr. Borkowski’s verbal outbursts were unremarkable, in that several inmates milling about the pod continued to go about their business, and nursing staff continued to administer medications, seemingly undisturbed. Without anyone asking for his assistance, Respondent took it upon himself to leave the desk area outside of the pod, enter the pod, and address Mr. Borkowski.4/ The video evidence shows that in a matter of seconds, Respondent entered the pod, walked up to Mr. Borkowski in his wheelchair, slowed down slightly at the side of the wheelchair (appearing to be stepping around something on the floor), and continued seamlessly around the wheelchair to stand behind it, grab the handles, and start pushing the wheelchair towards the pod doorway. Mr. Borkowski put his feet on the floor to stop the forward movement of the wheelchair. When he did so, he rose slightly to a partial standing position for a fraction of a second, then immediately returned to a seated position. When Mr. Borkowski braced and tensed in this manner, he had his back to Respondent; Respondent stood behind the wheelchair and Mr. Borkowski faced forward. He did not turn around towards Respondent, even in part. Respondent then moved to the right side of the wheelchair, placing his left hand on Mr. Borkowski’s back. Respondent’s left arm rose up Mr. Borkowski’s back, and when it reached above the shoulder to the neck area, Respondent’s left arm wrapped around Mr. Borkowski’s neck, controlling his neck and head. Respondent admitted that his arm was “probably” underneath Mr. Borkowski’s chin. (Tr. 140). Then, in rather startling violent fashion, Respondent lifted Mr. Borkowski up from his wheelchair seat by his neck and head and slammed him face down to the floor with enough force to break Mr. Borkowski’s dentures into pieces and topple the wheelchair. The wheelchair landed upended near the pod doorway. Respondent pinned a flattened Mr. Borkowski to the floor, with Respondent’s left knee pressing on the inmate’s back. There was some evidence that after Respondent moved to the right side of the wheelchair, either just before or at the same time as Respondent began his takedown, a small paper or plastic cup that had been in Mr. Borkowski’s right hand was dislodged, either going up in the air or up and backward. The cup may have had a small amount of water in it, or it may have been empty. Respondent testified that Mr. Borkowski tried to throw his cup at Respondent. However, if the cup was thrown on purpose, it was not thrown in the direction of Respondent, who was next to--not behind--the inmate; neither the cup nor any contents that may have been in the cup came into contact with Respondent. The evidence does not support a finding that Mr. Borkowski aggressively attacked Respondent by throwing a cup of water at Respondent. Instead, it is more plausible that: the cup was dislodged when Respondent began the takedown; this inmate with Parkinson’s disease involuntarily lost his grip; or the inmate intended to throw the cup as a distraction, not aimed at Respondent or anyone else. Respondent also offered, as justification for the takedown, his testimony that when he moved to the right of the wheelchair, he felt something that he perceived to be Mr. Borkowski’s hand on Respondent’s left side, where Respondent’s Taser and radio were. Here too, however, Respondent’s statements were inconsistent. In the incident report that he was required to complete, Respondent stated that Mr. Borkowski grabbed Respondent’s shirt. When questioned, however, Respondent said that his statement had been inaccurate. Respondent conceded that Mr. Borkowski did not actually grab Respondent or Respondent’s shirt. But as to what actually happened, Respondent offered a variety of different statements: it was an attempted grab, not really a grab at all; Respondent perceived something like a grab with an arm, hand, or something; or Respondent just had a perception of something. Ultimately, Respondent admitted that what he perceived he felt may have been nothing more than the side of the wheelchair. Respondent acknowledged that when he perceived whatever he perceived, he did not actually see Mr. Borkowski move a hand or arm towards Respondent. The video evidence appears to confirm that there was no such movement. After the takedown, not surprisingly, the inmate struggled with Respondent on top of him. Respondent secured one of the inmate’s hands fairly quickly, but then struggled to secure the inmate’s other hand behind his back to cuff him. The videos show Respondent on top of the inmate, using both upper and lower limbs to deliver blows to the inmate’s side and up around his head. While it is impossible to discern from the video whether Respondent delivered full closed-fisted punches, it does appear that Respondent delivered blows of some kind, pulling both arms and right leg back, then forcefully moving them forward to connect with not only the inmate’s body, but also the inmate’s head. Whether the blows were administered with Respondent’s knees, fists, or both cannot be determined, but the difference is inconsequential. Respondent acknowledges that he delivered at least four knee strikes to Mr. Borkowski for pain compliance, although Respondent said that the strikes were delivered to the inmate’s torso. Respondent testified that he did not remember whether he punched Mr. Borkowski, although he did admit that it was possible that he punched the inmate. After the takedown, while Respondent was on the floor struggling with Mr. Borkowski, Deputy Pettiford came into the pod with her Taser. After she attempted ineffectively to deliver a drive-strike to the inmate, Respondent grabbed her arm with the Taser and brought the Taser into contact with Mr. Borkowski. As a result of the takedown, Mr. Borkowski suffered cuts and bruising to the head and face, and his dentures were broken in pieces. Respondent denied that he anticipated a use of force when he left his desk to go into the pod, but he offered conflicting versions to explain what he intended to do when he left his desk to go into the pod: during his investigation, Respondent initially said that Mr. Borkowski could not refuse to go to the clinic, so he went in to take Mr. Borkowski out of the pod to speak with Corporal Bolle, who was nearby in the pod on the other side of the officer’s station. Later, after acknowledging that Mr. Borkowski had the right to refuse to go to the clinic, Respondent said that he went into the pod only planning to speak with Mr. Borkowski to try to convince him to stop yelling. Finally, in a blend of the two versions, Respondent said that he went into the pod only with the intent of speaking with Mr. Borkowski to calm him down, but that Mr. Borkowski’s behavior escalated to aggression and at that point Respondent decided to remove the inmate from the pod out of concern for staff and other inmates. The evidence does not support Respondent’s explanation that he only intended to talk to Mr. Borkowski to calm him down. The video display shows that hardly more than a second passed from the time Respondent entered the pod and approached Mr. Borkowski to when Respondent moved to the back of the wheelchair and began pushing Mr. Borkowski towards the doorway to exit the pod. If a calming talk was the objective, Respondent gave up pretty quickly. Apparently, Respondent did not consider or deliver the one calming line that would have addressed the inmate’s problem--telling him that if he did not want to go to the health clinic, he did not have to go to the health clinic. As Respondent admitted, inmates have the right to refuse to go to the health clinic. Sheriff Gualtieri convincingly explained the significance of that right here: Even if you’re in jail, you have rights. Even if you’re in jail, you don’t have to eat the food. You don’t have to go see the doctor. There are a lot of things you don’t have to do. And if you don’t want to go see the doctor, you shouldn’t be forced to go see the doctor. I mean, it’s real clear. The healthcare practitioner can come see him. But engaging to that extent all over the fact that the man didn’t want to go to sick call, that is just so wrong. (Tr. 52). The evidence also does not support Respondent’s explanation that he only made the decision to remove the inmate from the pod when the inmate’s behavior escalated. Instead, until Respondent attempted to push the wheelchair towards the pod exit, Respondent admitted that the inmate was not irate and that his behavior had not escalated beyond mere verbal resistance to being taken to the clinic. The video evidence confirms that in the scant seconds between Respondent’s entry into the pod and when Respondent moved behind the wheelchair and began pushing the inmate towards the door, Mr. Borkowski displayed no sign of movements or gestures that would indicate escalating behavior. Finally, with regard to Respondent’s testimony that his plan was not to force Mr. Borkowski to go to the clinic, but rather, to simply remove Mr. Borkowski from the pod and take him to talk to a supervisor, Respondent admitted that he never shared this plan with Mr. Borkowski; he did not tell Mr. Borkowski that Respondent was not taking him to the clinic. When asked if the inmate may have thought that Respondent was trying to take him to sick call when the inmate had just said he was not going, Respondent conceded: “He could have perceived that. He could have perceived that, yes.” (Jt. Exh. 5 at 111). Not only is that possible, but it is the most likely impression given by Respondent’s failure to tell the inmate that he was not being forced to go to the clinic. A determination of whether a use of force is necessary requires due consideration of the totality of circumstances, including subject/officer factors such as the relative ages, size, and physical condition of the subject and the officer. Likewise, a determination of whether the degree of force is reasonable or excessive must be made with due consideration of the totality of circumstances. Sheriff Gualtieri explained how he viewed the circumstances in making the determination that Respondent’s use of force was prohibited conduct because it was unnecessary and excessive: A big factor for me was, what was the nature of the initial point of contact between Deputy Ferrio and the inmate? We have a 63- year-old male in a wheelchair who had Parkinson’s who was disabled, who had signed up to go to sick call. We don’t make people go to sick call. If somebody wants to go to sick call, they go to sick call. He didn’t want to go. If there was an issue or a problem with him going, don’t make him go or go get with medical and make a determination as to what’s appropriate or how to do it. What was striking to me was the reason for the contact. This wasn’t an inmate refusing to come out of a cell or we needed to do a cell extraction. He wasn’t threatening anybody. He was sitting in his wheelchair minding his own business and just didn’t want to go to sick call. At that point, Deputy Ferrio tried to force him to go to sick call and that is where the incident went very bad from the beginning because he shouldn’t have been forced to go to sick call at all. Once he did that, the inmate put his feet on the floor. He braced a little bit by putting his feet on the floor. Okay, so what? The inmate put his feet on the floor. The next thing that really happens of significance is Deputy Ferrio grabbing this 63-year-old guy sitting in a wheelchair by the neck and slamming him on the ground with such force that it causes the guy’s dentures to break. He slams his face down on the ground and then pummels him with his knees and fists. This is all over this guy, this inmate, who didn’t want to go to sick call. There was some discussion about this. We discussed it during the decision-making process. It was discussed during the board about this alleged water throwing. Well, there’s no water throwing[.] [And] this alleged touching. Even if they occurred, they are nominal events. This isn’t that some guy took a bottle of water and threw it in his face or caused him to be incapacitated. This is a 63-year-old frail guy with Parkinson’s disease who’s sitting in a wheelchair who at the most, and I don’t think it happened from watching it, is may have turned his cup maybe towards Deputy Ferrio or something along those lines, but there was no justification. No justification at all for using that amount of force to take the guy by the head and neck, slam him on the ground to the point where his dentures break and then pummel him with his hands and fists. That is what I considered in making a decision that it was excessive force under the circumstances. I gave some consideration to Deputy Ferrio’s statements in this case. But even if there was some justification to do something, it wasn’t slamming the guy to the ground and kicking and punching him. Maybe tilting the wheelchair back and pulling him out. Maybe telling him not to brace with his legs. Maybe something along those lines, but not what he did. (Tr. 42-45). Sheriff Gualtieri’s assessment of Respondent’s use of force in the context of the totality of the circumstances in which that use of force occurred is fully supported by the record evidence and the findings made above, is reasonable, and is credited. Respondent’s use of force was not justified, and was not a reasonable response under the totality of circumstances. This finding is not a reflection of hindsight examination of the circumstances. Instead, the undersigned finds that a reasonable officer on the scene on October 1, 2014, would not have responded to the circumstances the way Respondent did. Respondent’s changing description of the events at issue and shifting rationales for his actions call into question Respondent’s credibility. Respondent’s evolving story suggests that it was Respondent who engaged in hindsight evaluation of his own actions, and, finding them wanting, revised the details in an effort to paint a more reasonable picture. What cannot be changed is the vivid picture of what transpired, recorded by two security cameras. While the two views do not perfectly capture every detail, they provide a clear visual record of what actually transpired that day, with images that cannot be denied or changed over time. The picture portrayed is more in keeping with Respondent’s admissions to the Administrative Review Board that he probably should not have gone into the pod and used force on the inmate (Jt. Exh. 6 at 148); and that even after the inmate braced and tensed, he did not have to rip him out of the wheelchair and take him down, but did so acting in “[t]he heat of the moment.” (Jt. Exh. 6 at 149). It is found, as a matter of ultimate fact, that Respondent’s use of force on October 1, 2014, was not necessary to accomplish a legitimate law enforcement task, was not justified by the totality of circumstances presented that day, and was excessive in degree, in violation of General Order 3-1.1, Rule and Regulation 5.15. Pursuant to General Order 3-1, a violation of Rule 5.15 is a level five violation--the most serious level under the PCSO disciplinary system. According to the point scale in General Order 10-2, 50 points were properly assigned for this violation. The discipline provided for this single 50-point violation ranges from a five-day suspension to termination. However, Respondent had a significant prior disciplinary history, with 30 carryover points from previous discipline. In accordance with the concept of progressive discipline built into Petitioner’s disciplinary system, the carryover points increased the authorized discipline to a range of from a ten-day suspension to termination. See General Order 10-2.6. Under Petitioner’s disciplinary system, prior counseling is another factor relevant to the progressive discipline process, although counseling does not count toward the progressive point total. The evidence established that Respondent had been counseled previously about uses of force, in contexts bearing some similarities to this case. Respondent acknowledged that he previously was counseled by his superiors and warned about grabbing an inmate by the neck to execute a takedown. The inmate, Mr. Strempel, was also elderly and was in the same healthcare unit as Mr. Borkowski. Respondent was also counseled for a separate incident involving an inmate, Mr. Griffith, who refused to go to Advisory Court, which was the inmate’s right (just as it was Mr. Borkowski’s right to refuse to go to sick call). Respondent forced the inmate to go, engaging in a use of force to cuff the inmate. When counseled, Respondent told his superiors that he did not know the inmate could refuse. The evidence established that the disciplinary action against Respondent is consistent with the disciplinary action taken against other members who committed the same or similar conduct. Petitioner offered the unrebutted testimony of Sheriff Gualtieri that he has always imposed termination as the disciplinary consequence for other members, after it was substantiated that they engaged in the same sort of prohibited conducted as Respondent. Respondent did not offer any evidence to the contrary, to refute the Sheriff’s testimony that he has consistently applied discipline in all cases similar to Respondent’s case. Indeed, the Sheriff’s testimony was actually corroborated by Respondent, who testified that he is not aware of any other PSCO member who was found to have committed the same or similar conduct and who received a lesser form of discipline than Respondent. The Sheriff reasonably exercised his authority, within the disciplinary range authorized by General Order 10-2 and consistent with the discipline imposed in similar cases, to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Pinellas County Sheriff’s Office, enter a final order finding that Respondent, Raymond Ferrio, engaged in prohibited conduct by violating General Order 3-1.1, Rule and Regulation 5.15, and upholding the termination of Respondent’s employment. DONE AND ENTERED this 20th day of October, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of October, 2015.
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-7. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 3 and 4. Incorporated in Finding of Fact 6. 10-11. Incorporated in Finding of Facts 7 and 8. Incorporated in Finding of Facts 10 and 11. Rejected as contra to the weight of the evidence. Incorporated in Finding of Fact 17. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that: Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated. RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986. COPIES FURNISHED: Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Gene "Hal" Johnson, Esq. 233 W. College Avenue Tallahassee, FL 32301 Robert R. Dempsey Executive Director Department of Law Enforcement O. Box 1489 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue Whether Respondent was the subject of an unlawful discrimination action as defined in Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. She was certified as a corrections officer in March 1991. In November 1995, Petitioner was employed by Respondent, Department of Corrections, at Taylor Corrections Institution in Perry, Florida, as a correctional officer with the rank of sergeant. Prior to her employment at Taylor Corrections Institution she had been a corrections officer at a correctional facility in Jefferson County. Petitioner did not have employment problems while working at the Jefferson County facility. Petitioner's first year at the Taylor County correctional facility was "O.K." However, Petitioner was not well liked among her fellow officers. Between June through October 1996, Petitioner was the subject of several complaints from her fellow officers. These separate complaints were: On June 12 or 13, 1996, King cursed at an entire dormitory of inmates. On June 19 King was assigned to assist another officer in conducting a recount of inmates. She failed to assist the officer in conducting the recount. On July 24, 1996, King was assigned to escort the swill truck (a food truck) by the control room sergeant. She refused to accept the assignment and cursed at the control room sergeant. A few days later, she confronted another officer in a hostile and threatening manner because the officer had submitted an incident report concerning King's conduct in cursing at the control room sergeant. On October 9, another sergeant asked King to sign a typed incident report regarding King's loss of her state-issued handcuff case. King initially refused to sign the report. Shortly thereafter, she tore up the report in the presence of an inmate because she was displeased with certain comments in the report. On October 28, King cursed at a coworker. Id. PERC Final Order dated October 8, 1997. In October 1996, Petitioner filed several internal discrimination complaints against the agency generally opposing unfair employment practices. The exact nature of these complaints was not established by the evidence. On December 13, 1996, Petitioner received a notice of disciplinary charges being brought against her based on the earlier-filed employee complaints. The notice lists the charges as follows: Multiple charges are being brought against you stemming from several investigations. In the first case, you are being charged with malicious use of profane or abusive language toward inmates, visitors, or persons under supervision, use of verbal abuse of an inmate, conduct unbecoming a public employee, and willful violation of state statute, rule, directive, or policy statement. Specifically on June 25, 1996, an anonymous request was received by the Superintendent's Office alleging that you cursed the entire dormitory of inmates on June 13, 1996. It was also alleged that you had been gambling and would not pay off your debts. This prompted an investigation into these allegations. Several witnesses including an inmate verified the above allegations. The basis for these charges is contained in the Institutional Investigation Report #96-044, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33- 4.001(4)(a), 33-4.002(4)(9), and 33- 4.003(6)(20)(22)(24), F.A.C., copies attached and made a part hereof. In the second case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming a public employee, unwilling to follow lawful orders or perform officially designated duties, interference with an employee, failure to follow oral or written instructions, witness tampering during an investigation, and retaliation. Specifically on July 24, 1996, Sergeant J. Pickles reported that while assigned as Control Room Supervisor, he advised you via radio that he needed an escort for the swill truck. You responded by telephone and stated "Why are you calling me? I'm not escorting that fucking swill truck. I'm busy in the Caustic Room. Get someone else to do that shit." Officer V. Aman submitted an incident report verifying the telephone conversation since it was the dormitory in which she was assigned to that you came to use the telephone. On August 1, 1996, Officer Aman also stated that you made threats toward her in retaliation for submitting her report, in which you admitted to confronting this officer. The basis for these charges is contained in Institutional Investigation Report #96-052, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33- 4.002(4)(11)(17), 33-4.003(22)(24)(32), F.A.C., and Sections 914.22, 914.23, Florida Statutes, copies attached and made a part hereof. In the third case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming, unwillingness to perform officially designated duties, substandard quality of work, negligence, and failure to follow oral or written instructions. Specifically, on June 19, 1996, a recount was ordered and you were informed by the control room that your dormitory officer needed assistance in the recount. The officer stated that he waited approximately ten (10) minutes for your arrival and proceeded to recount without assistance. He then submitted an report as to the incident. You then submitted an incident report concurring with the officer with the exception that you observed the recount from the Officer's Station. The basis for these charges can be found more specifically contained in the Institutional Investigation #96-058, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(4)(11) and 33-4.003(10)(13)(22)(24)(32), F.A.C., Institutional Post Orders 17.02(j), 06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4), and Institutional Operating Procedures 3.03.3(C)(5)(11e), copies attached and made a part hereof. In the fourth case, you are being charged with conduct unbecoming a public employee, willful violation of state statute, rule, directive, or policy statement, and destruction or abuse of DC property or equipment. Specifically on October 9, 1996, you submitted an Incident Report for losing your state issued handcuff case. On October 13, 1996, after being typed, Sergeant Chad Dees gave the Incident Report to you to be signed. Upon receiving the report, you allegedly stated "I will show you what I will do with this," then tore the report up and walked away. You admitted to tearing up the report because of the comments written by Captain Simons, but denied making the comment alleged by Sergeant Dees. Officer Tammy Alvarez witnessed you tear up the report, but denied hearing any statements made by you. The basis for these charges is contained in the Investigative Report #96-23008, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(25), and 33- 4.003(22)(24)(27), F.A.C., copies attached and made a part hereof. All of these charges pre-date Petitioner's internal complaints. On January 23, 1997, a predetermination conference was held on the above charges. The evidence did not demonstrate that the employee charges or the disciplinary action were retaliatory in nature or based in discrimination. Moreover, the factual basis of the charges was upheld in the PERC Final Order. As referenced in the letter, Petitioner was the subject of several investigations conducted by the Inspector General's Office of the Department of Corrections. The role of the Inspector General was to gather the facts and evidence involved in a complaint. The Inspector General does not make any recommendations as to discipline or determine if a rule or statutory violation has occurred. Raleigh Sistruck, an Inspector with the Inspector General's office conducted some of the investigations of Petitioner. He did not personally know Petitioner. There was no evidence that he treated Petitioner differently than he did any other investigatory subject. Nor did Inspector Sistruck engage in any conspiracy or act alone to fabricate evidence against Petitioner or elicit false testimony from witnesses. Indeed, the only evidence presented in this case, is that Inspector Sistrunk followed standard investigatory procedures in investigating the complaints against Petitioner. In January, 1998, Petitioner was accused of soliciting an inmate and another correctional officer to cause harm to another inmate at the facility. The Inspector General's office investigated that accusation. Again there was no evidence that the inspectors engaged in any conspiracy to falsify or fabricate evidence. Normal investigatory procedures were followed. Based on the various complaints and the findings set forth in various Inspector General investigations, Mr. Drake decided to terminate Petitioner. Petitioner received a letter of extraordinary dismissal on February 7, 1997. The dismissal letter dismisses Petitioner for: This dismissal is the result of you being charged with willfully engaging in conduct which violates state statutes and Agency rules; conduct unbecoming a public employee; failure to conduct yourself in a manner consistent with the welfare of inmates; soliciting, bartering, dealing, trading with or accepting a gift or other compensation from an inmate(s); willfully treating an inmate in a cruel or inhuman manner; threatening or interfering with other employees while on duty; failure to maintain a professional relationship with inmates; giving false testimony; and interfering with an inmate. Specifically, on or about January 10, 1997, you solicited the assistance of inmate Tony Jackson, DC#724515 and Correctional Officer Jacqualyn Jackson-Beasley to cause harm to inmate Mike Doty, DC#725094. As a result of your actions and requests, Officer Jackson- Beasley, inmate Jackson, inmate Mark Smith, DC#724887, inmate Alberto Matta, DC#191523 and inmate Thomas Carrillo, DC#195319, conspired and did plant a homemade knife, with an approximate 14 inch blade, in inmate Doty's cell in an effort to set him up. When inmates Carrillo and Matta entered F- Dorm with the knife, Officer Jackson-Beasley signaled then with her fingers indicating inmate Doty's cell number. She also acted as a cover while the inmates planted the knife in inmate Doty's cell. Once the knife was planted, you and Officer Jackson-Beasley had a telephone discussion during which you instructed her to call Sergeant Gerald Miller and have inmate Doty's cell searched. Once Officer Jackson-Beasley reported the information to Sergeant Miller, a search of Doty's cell was made and the knife was recovered. Sergeant Miller than notified Captain William F. Buchtmann. After questioning by Captain Buchtmann, inmates Carrillo and Mata, both admitted their participation in placing the knife in inmate Doty's pillow and stated they were contacted by inmates Jackson and Smith for assistance. Carrillo was told by Jackson and Smith that it was you who wanted inmate Doty taken care of and they gave inmate Carrillo the impression that if he took care of inmate Doty, he would be paid $50.00 and be given an undisclosed amount of marijuana for his assistance. The following day, January 11, 1997, you stated to inmate Jackson words to the effect, "They locked up inmate Smith" and "That motherfucker talked" (referring to inmate Matta) You also stated to inmate Jackson words to the effect, "It's not cool for me to be seen talking to you." On or about January 17, 1997, Officer Beverly Pratt overheard you state to an unidentified inmate, words to the effect, "Something needs to be done with Doty." On that same date, inmate Willie Jackson, DC#041463, overheard you state to an unidentified inmate, words to the effect, "I am going to get Officer Jackson-Beasley and Sergeant Miller." When questioned under oath, on January 24, 1997, you gave false testimony when you denied all allegations. Additionally, the letter dismisses Petitioner for the earlier disciplinary charges discussed at the predetermination conference in December. Mr. Drake, Superintendent of Taylor Correctional Institute at the time, testified that Petitioner's termination was based on his belief that she had in fact committed the aforementioned rule and statutory violations. He stated that the termination was not based on Petitioner's race or sex or any other of her characteristics; rather, the termination was based on rule and statute violations. There was no evidence which demonstrated Mr. Drake engaged in any conspiracy to concoct evidence against Petitioner or to falsely accuse her. Angela Ratliff, Personnel Supervisor at the time, testified that she did not have any conversation with Petitioner wherein she told her that the Department, her supervisors or coworkers were "out to get her" or words to similar effect. Additionally, Ms. Ratliff does not recall having any conversations with prospective employers for Petitioner. The Respondent's policy is to recite to a prospective employer information contained in the employee's personnel file. The Department does not offer opinions or recommendations about an employee. Moreover, most of the information in the personnel file is considered a public record and must be released to any person or entity requesting the information. In any event, other than broad general statements about seeking employment and what she was told by others who did not testify at the hearing, there was no evidence regarding any specific prospective employer or the information, if any, the prospective employer received from the Department. There is no doubt that Petitioner feels very strongly she was discriminated against. The problem with Petitioner's case is a total lack of evidence to support her allegations. Throughout the hearing she made allegations of discrimination. However, no evidence apart from her allegations of which she had no personal knowledge, was offered. For instance, the alleged paper trail created against her or documents she claimed were changed were not introduced into evidence. No witness was called who wrote or filed such document or statement was called to testify about any such document or statement or any alleged change made to the document or statement. The paper noises or pauses of tape-recorded interviews of witnesses taken during the Inspector General's investigation did not support Petitioner's claim that the witnesses were prompted or told what to say. Such noises or pauses sounded exactly like pages being turned in a notebook when one page is full and a new page is needed to continue taking notes. The pauses sounded like a note taker pausing the witnesses' statement in order to catch up the notes to the witnesses' statement. Given these critical lapses in evidence and the earlier PERC Final Order, the Petition for Relief should be dismissed.
Recommendation Based upon the 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. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2001. COPIES FURNISHED: Anita King 108 Alice Street Perry, Florida 32347 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues are whether Respondent discriminated against Petitioner based on a perceived disability and retaliated against her in violation of Section 760.10, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent at the Liberty Correctional Institution (LCI). She was hired as a Correctional Officer in LCI's Security Department effective December 21, 1990. In February 1991, Petitioner was counseled regarding her failure to report for duty or to notify the institution of an intended absence. On April 1, 1996, Petitioner's supervisor counseled her regarding her failure to report to work in a timely manner. Petitioner had been tardy to work three times in March 1996. On May 30, 2001, Respondent counseled Petitioner regarding her excessive absenteeism. Petitioner had five unscheduled absences. Respondent promoted Petitioner to Correctional Officer Sergeant effective November 1, 2001. In October 24, 2003, Respondent gave Petitioner an oral reprimand for abuse of sick leave. Petitioner had developed a pattern of absenteeism in conjunction with her regular days off. In December 2004, Respondent gave Petitioner a written reprimand. The reprimand was based on Petitioner's failure to follow oral and/or written instruction, continued absenteeism, and abuse of sick leave. On July 7, 2007, Petitioner sustained an on-the-job injury. The injury was diagnosed as carpel tunnel syndrome. Petitioner underwent surgery for this condition in December 2007. On or about April 8, 2008, Petitioner reached statutory Maximum Medical Improvement (MMI). Petitioner had a Permanent Impairment Rating (PIR) of six percent. On April 15, 2008, a functional capacity evaluation revealed that Petitioner was able to perform light work with lifting restrictions. The restrictions prevented Petitioner from performing the essential functions of a Correctional Officer. Pursuant to policy, Respondent immediately conducted a job search. At that time, a Clerk Typist Specialist position was available at LCI. Petitioner was qualified to perform that job. She submitted an application for the position on or about June 5, 2008. In a letter dated June 10, 2008, Respondent offered Petitioner the Clerk Typist Specialist position in LCI's Classification Department. On June 26, 2008, Petitioner signed an Acknowledgement, accepting a voluntary demotion from Correctional Officer Sergeant to Clerk Typist Specialist and stating that she agreed to perform the duties of the new position to the best of her ability. Petitioner returned the Acknowledgement to Respondent. At the same time, Petitioner questioned whether she would be able to perform the duties of a Clerk Typist Specialist due to her carpel tunnel condition. In a letter dated June 27, 2008, Respondent requested that Petitioner take an essential functions form to a July 8, 2008, doctor's appointment. Respondent wanted the physician to complete the essential functions form and return it to Respondent by July 18, 2008. The purpose of the evaluation was to determine whether Petitioner was able to perform as a Clerk Typist Specialist. On or about July 24, 2008, Petitioner advised Respondent that she was going to have a nerve conduction test on July 30, 2008. She advised Respondent that she would provide the results to Respondent as soon as possible. In a letter dated August 20, 2008, Respondent advised Petitioner that, pending the results of a pre-determination conference, Petitioner could be dismissed from her employment as a Correctional Officer effective September 11, 2008. Respondent proposed this action because Petitioner had not provided Respondent with a doctor's report regarding Petitioner's ability to perform the essential functions of a Clerk Typist Specialist. A pre-determination conference was held on August 27, 2008. In a letter dated September 12, 2008, Warden Douglas advised Petitioner that she would not be dismissed because she had provided medical documentation of her ability to perform the position of a Clerk Typist Specialist. Petitioner began working in that capacity on September 19, 2008. In December 2008, Petitioner sent an e-mail to Respondent's Secretary, Walt McNeil. In the e-mail, Petitioner complained that Respondent had not returned her to work as a Correctional Officer Sergeant after being medically cleared to work in that capacity. There is no persuasive evidence that Petitioner had been medically released to work as a Correctional Officer in December 2008. Additionally, there is no evidence that Petitioner had made a request or filed an application to return to work as a Correctional Officer at that time. Respondent subsequently requested Petitioner's doctor to provide an updated opinion regarding Petitioner's ability to work as a Correctional Officer. On or about January 15, 2009, Petitioner's doctor approved Petitioner's return to work as a Correctional Officer with no restrictions. In a memorandum dated February 9, 2009, Respondent advised Petitioner that she was medically cleared to work as a Correctional Officer but that she would need to apply for openings. The memorandum stated that Petitioner had to be reprocessed as a Correctional Officer, including having a drug test and physical examination. The February 9, 2009, memorandum also reminded Petitioner that she would be required to serve another probationary period if she received an appointment as a Correctional Officer. There is no promotion track between the Security Department and the Classification Department. Petitioner applied for four Correctional Officer positions between February and May 2009. Two of the applications were for positions located at LCI. The third application was for a position at Calhoun Correctional Institution (CCI). The fourth application was for a position at Franklin Correctional Institution (FCI). On February 10, 2009, Warden Chris Douglas at LCI declined to interview or rehire Petitioner as a Correctional Officer for position number 7002037. Warden Douglas made this decision based on Petitioner's previous and current employment history showing attendance problems. Petitioner's testimony that she never applied for this position is not persuasive. Petitioner's application for a Correctional Officer position at FCI was never completely processed. In a letter dated April 9, 2009, Respondent advised Petitioner that she needed to provide additional information to support her application for employment in position number 70039564 at FCI. Petitioner did not respond to the request because she decided that she did not want to commute to work so far from her home. On April 23, 2009, Petitioner received her Performance Planning and Evaluation. Her direct supervisor, Kim Davis, Respondent's Classification Sentence Specialist, rated Petitioner as performing "Above Expectation" in all applicable categories. On April 30, 2009, Petitioner requested Warden Douglas to let her complete her mandatory firearm training because her weapons qualification was about to expire. Warden Douglas promptly responded that she could be scheduled to take the next firearms class. Petitioner re-qualified with specified weapons on May 11, 2009. On May 28, 2009, Petitioner was interviewed for a position as a Correctional Officer at LCI. She gave correct and appropriate answers to all questions during the interview. Even so, Warden Douglas decided not to hire Petitioner due to her past and current attendance problems. Warden Adro Johnson did not give Petitioner an interview for Correctional Officer position number 70041507 at CCI. He made his decision in July 2009 based on information indicating that Petitioner was already employed at LCI. In July 2009, Respondent's supervisor counseled Petitioner regarding her attendance. She had been absent for four unscheduled absences in the past 90 days. She had missed approximately 40 work days or eight weeks of work during the 11 months she was in the position of Clerk Typist specialist. On August 3, 2009, Petitioner filed her initial complaint with FCHR. Ms. Davis was the person who trained Petitioner as a Clerk Typist Specialist. Petitioner's job included filing documents related to approval or disapproval of inmate visitation. The original documents were sent to the inmates. Respondent was supposed to file copies of the documents in the inmates' classification files. During the time that Petitioner worked as a Clerk Typist Specialist, Ms. Davis had to counsel Petitioner approximately ten times regarding the filing of the inmate visitation documents. Ms. Davis stressed the importance of Petitioner completing her work and filing the documents in a timely manner. Additionally, Ms. Davis noted that Petitioner occasionally failed to properly file the documents. Petitioner was trained to remove duplicate copies of documents from inmate files. Duplicate copies of documents could be shredded. Petitioner was not instructed to shred the inmate visitation documents. If the documents were not legible, another copy was supposed to be made, using the copy machine to darken the print. Willie Brown is one of the Assistant Wardens at LCI. His office was close to Petitioner's work area. Assistant Warden Brown occasionally counseled Petitioner regarding the need to file the papers on her desk. On August 18, 2009, Assistant Warden Brown observed a large amount of paperwork that Petitioner had not filed. Once again, Assistant Warden Brown told Petitioner that she needed to file on a timely basis. He explained that Petitioner could file on the schedule she developed, but that it might be necessary to file everyday. Later on August 18, 2009, Heather Barfield, a Correctional Sentence Specialist, observed Petitioner feeding a large amount of paper into a shredder, causing the shredder to jam. Ms. Barfield subsequently attempted to clear the shredder jam and noticed that the papers belonged in the inmates' files. Ms. Barfield reported her observations to Assistant Warden Brown and Cynthia Swier, the Classification Supervisor. Assistant Warden Brown confirmed that the partially shredded documents were legible and should have been filed. Ms. Davis was informed about the shredding incident when she returned to work the following day. Ms. Davis verified that the shredded documents had been legible and were not duplicates of documents in the inmates' files. The greater weight of the evidence indicates that Petitioner intentionally shredded the documents in order to clear her desk. Petitioner's testimony that she was shredding them because they were not legible is not credible and contrary to more persuasive evidence. On August 26, 2009, Respondent terminated Petitioner employment as a Clerk Typist Specialist. Because she was on probationary status, she had no appeal rights.
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. DONE AND ENTERED this 11th day of May, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2010. COPIES FURNISHED: Gertrude Berrieum 5032 Martin Luther King Road Bristol, Florida 32321 Todd Evan Studley, Esquire 2601 Blair Stone Road Tallahassee, Florida 32399 Walter A. McNeil, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
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 Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination are: 1) whether Carden House failed to ensure daily observation by staff of a resident at the facility in violation of Florida Administrative Code Rule 58A-5.0182(1)(b); 2) whether Carden House failed to maintain written records of any significant changes in residents' normal appearance or state of health in violation of Florida Administrative Code Rule 58A-5.0182(1)(e); (3) if yes, what penalty should be imposed; and (4) whether Carden House is liable for a complaint survey fee of $400.00.
Findings Of Fact The Agency is the state agency charged with the responsibility of licensing assisted living facilities in Florida and with evaluating such facilities to ensure that they are in compliance with state regulations. Carden House is an assisted living facility in St. Petersburg, Florida, licensed by, and subject to, regulation by the Agency. On January 10, 2003, the Agency conducted a complaint investigation of Carden House following a complaint made to the Agency hotline. The complaint alleged that a resident at the facility (Resident #1) was "found dead on the bed" and that the facility had failed to properly supervise the resident. Sharon McCrary conducted the complaint investigation at Carden House. As part of the survey, Ms. McCrary interviewed staff at the facility regarding Resident #1 and reviewed documentation provided by the staff. Based on information obtained by staff at the facility, the Agency found that on January 9, 2003, at 8:30 a.m., Resident #1 was found dead by his caseworker, who had come to the facility to take the resident to an appointment. As a result of Ms. McCrary's interviews with staff, the Agency also made the following finding in its report of the investigation: According to information received from staff interview, Resident #1 had been sick during the holidays but attempts by his family member to take him to a physician were met with refusals by the resident. According to the staff [Tina], another staff member had told her that on 1/8/03 the resident [Resident #1] was coughing badly and couldn't catch his breath. Resident #1 reportedly told staff that he wasn't feeling well and was going to his room to go to sleep. Tina, a facility staff member, was interviewed by Ms. McCrary and provided the above information regarding Resident #1's condition on January 8, 2003. However, Tina was not on duty or present at the facility on January 8, 2003. Therefore, she had no first-hand knowledge regarding Resident #1's condition on January 8, 2003, the day prior to the resident's death. Bridget LaPoint was not at the facility during the investigation and, thus, was not interviewed by Ms. McCrary prior to the report being written. However, Ms. LaPoint was aware that Resident #1 had not been feeling well during the holidays, two weeks prior to his death. Moreover, at that time, Ms. LaPoint informed the resident's mother and his caseworker of his condition. During this time, Resident #1's mother had attempted to take him to the doctor, and he refused to go. On the evening of January 8, 2003, the night before Resident #1 was found dead in his bed, Ms. LaPoint saw Resident #1 and talked to him. During that conversation, Resident #1 told Ms. LaPoint that he was feeling much better and had a doctor's appointment the next day. The Complaint summary indicated that Resident #1 was last heard at about 3:00 a.m. on January 9, 2002, when asking someone for cigarettes. However, this factual allegation was not verified by the Agency evaluator or substantiated at hearing. On the morning of January 9, 2003, Resident #1 did not come down for breakfast, which at Carden House begins at 8:00 a.m. As of 8:30 a.m., no staff member had yet checked on Resident #1 to see if he wanted to come down for breakfast. Prior to any facility staff member's checking on Resident #1, his caseworker arrived at the facility and went to the resident's room to take him to a doctor's appointment. When the caseworker entered Resident #1's room at about 8:30 a.m., she discovered that the resident was dead. Ms. LaPoint had personal knowledge of Resident #1's health situation during the two weeks prior to his death, contacted appropriate individuals about taking him to the doctor, and spoke with him about his condition the night before he died. However, the facility provided no documentation or other written information to the Agency regarding Resident #1's health or any change in his health status. As a result of the complaint investigation, the Agency concluded that Carden House failed to maintain documentation that it was aware of Resident #1's changed health status or his illness and the facility's interventions, such as contacting his family, physician, or caseworker. The Agency further concluded that the lack of such documentation indicated that the facility had not monitored the Resident #1 on a daily basis, assisted him, or checked on his condition. During the investigation of Carden House, Ms. McCrary accompanied a facility staff member into the room of Resident #3. When Ms. McCrary entered his room, who was diagnosed as suffering from severe chronic schizophrenia, Leucopoenia, anemia, and gerd, Resident #3 acted in a very threatening manner and yelled obscenities toward her. As part of her complaint investigation, Ms. McCrary interviewed a facility staff member who reported that Resident #3 had also threatened her. The staff member apparently did not provide the dates, circumstances, or the nature of those threats to the Agency evaluator. However, the staff member told Ms. McCray that, lately, Resident #3 had not been taking his medication. A review of Resident #3's records confirmed that in December 2002 and in January 2003, the resident had not taken his medicine as prescribed. It is not unusual for residents such as Resident #3 to refuse to take their medication. However, when a resident refuses to take his medication, that information should be noted on his or her record. In the case of Resident #3, no such notations appeared on his records. There was no indication in the resident's records or other facility documents that the facility had contacted the resident's family, caseworker, or health care provider regarding his behavior, condition, or refusal to take his medication. As a result of the complaint investigation, the Agency cited Carden House for violating two minimum standards. First, the Agency alleged that, with regard to Resident #1, the facility failed to provide daily observation of the activities of the resident while on the premises and was not aware of the general health, safety, and physical and emotional well-being of the individual. Second, the Agency alleged that, with regard to Resident #1 and Resident #3, the facility failed to maintain a written record of significant changes in the residents' normal appearance or state of health. The Agency classified the two deficient practices as Class II deficiencies because the Agency determined that the violations or deficiencies were serious and posed a great potential for harm to the residents. The Agency gave Carden House until January 31, 2003, to correct the alleged deficiencies. For each of the two alleged Class II violations, the Agency seeks to impose the maximum fine of $5,000.00, for a total of $10,000.00. The Agency seeks to impose a survey fee of $400.00 against Carden House for investigating the complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency of Health Care Administration enter a final order finding that Carden House violated Florida Administrative Code Rule 58A-5.0182(1)(e) and imposing a fine of $1,500.00. DONE AND ENTERED this 30th day of January, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2004. COPIES FURNISHED: Bridget LaPoint Carden House 2349 Central Avenue St. Petersburg, Florida 33713 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701-3219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Tanika Parker was certified as a correctional officer in the State of Florida by the Criminal Justice Standards and Training Commission on September 9, 2005, and was issued correctional certification number 251547. (admitted fact) From August 13, 2004, until July 13, 2006, Respondent was employed as a correctional officer by the Florida Department of Corrections and was assigned to the Dade Correctional Institution. (admitted fact) On January 9, 2006, Respondent applied for a correctional officer position with the Palm Beach County Sheriff's Office. (admitted fact) On March 10, 2006, as part of the Palm Beach County Sheriff's Office application process, Respondent answered the written question: "Have you had an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee [sic]?" by circling on the form as her response: "No." (admitted fact) Also during March 2006, George Montenegro, a Senior Inspector in the Department of Corrections Inspector General's Office assigned to the Dade Correctional Institution, received information from a confidential informant that Respondent "was involved with" an inmate with the nickname of "Plump." Although an investigation was begun, it was not until early July when a second confidential informant disclosed the identity of Plump. It was inmate Leroy Rogers. Thereafter, Plump's phone calls were monitored, and his cell was searched on July 21, 2006. Among other items in Plump's cell were 34 photographs. At that point Respondent had resigned and was no longer an employee of the Department of Corrections. Since Respondent was in the process of being hired by the Palm Beach County Sheriff's Office, Inspector Montenegro contacted that agency and spoke with Eric Monath, a Sergeant with the Palm Beach County Sheriff's Office Division of Internal Affairs. The 34 photographs taken from Plump's cell included the following: one of a cake inscribed "Happy Birthday Plump"; one with a little girl licking the icing off the cake knife; two of the front of Respondent's residence with the little girl in front; eleven more of the little girl at various locations; one close-up of an adult female's breasts; six close-ups of an adult female's naked genitalia; eight of an adult female's genitalia and/or buttocks either partially or fully covered by underwear; one of a T-shirt decorated with two hearts, one of which was inscribed "Plump" and the other one "Plumpness"; and three of a woman in that T-shirt, wearing some of the same underwear depicted in some of the other pictures. The photos of the naked or clothed woman do not show the woman's face, head, or neck. They only focus on a particular part of the female's anatomy. One of the pictures, however, shows the female from behind with her hands on her hips, and that one reveals a scar or discoloration on the woman's left, inside forearm. On July 27, 2006, Respondent attended an orientation session at the Palm Beach County Sheriff's Office, wearing a sleeveless shirt. Sergeant Monath saw that same identifying mark on Respondent's forearm. On August 1, 2006, Sergeant Monath met with Inspector Montenegro at the Walgreen's near Respondent's residence and presented the photos with the identifying Walgreen's information on the back of each one to the store's manager. The store manager confirmed that the identifying information was for that store and, using it, checked the store's computer records. The customer for whom the photographs were developed was Respondent. Inspector Montenegro and Sergeant Monath then drove to Respondent's residence and compared the front of the structure to the structure depicted in the photographs. It was the same, including the location of the sprinkler head in the front yard. The monitored phone calls made by Plump were to a female who was never identified in the phone calls. However, during one of the calls, the female yelled instructions to someone in the background named Taliyah. Respondent's application for employment by the Palm Beach County Sheriff's Office listed as the only person living with her, her daughter Taliyah Wilcox. Inmate Rogers' visitor log shows that Respondent visited him thirteen times between November 4, 2006, and July 7, 2007. She listed herself as a "personal friend."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her correctional certificate numbered 251547. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 7th day of September, 2007. COPIES FURNISHED: George G. Lewis, Esquire George G. Lewis, P.A. 950 South Pine Island Road, Suite 150 Plantation, Florida 33324 Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489 Tallahassee, Florida 32304 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on April 28, 1988, and issued him certificate number 86967. At all material times, the Miami-Dade Department of Corrections and Rehabilitation employed Petitioner as a correctional officer. At the time of this incident, Respondent worked at the Turner Guilford Knight Correctional Center (TGK). For December 20-21, 1999, Respondent reported to TGK for a shift that began at 10:30 p.m. on December 20 and ended at 6:30 a.m. on the next morning. Respondent's position was a unit manager of Unit K4-2. As the unit manager, Respondent was responsible for the care, custody, and control of all inmates in this unit. This responsibility included the duty of ensuring that all inmates were present and accounted for in the unit, and Respondent was required to conduct an inmate headcount and in- cell checks of all inmates. Correctional officers conducting in-cell checks document the time of their checks on a Visual Checks log. The purpose of the Visual Checks log is to inform the correctional officer's superior and other correctional officers that the officer entering the information in the log walked the entire unit at the time noted and visually checked all inmates housed in the unit. If, as is customary, the correctional officer found nothing amiss, he would enter "QRU" in the log, which informs his superior and other correctional officers that all was well in the unit at the time indicated for the check. During his shift of December 20-21, 1999, Respondent made seven entries in the Visual Checks log for his unit. The indicated times were hourly, on the hour, from 11:00 p.m. on December 20 through 6:00 a.m. on December 21. For each entry, Respondent recorded a headcount and wrote in the Visual Checks log, "VISUAL CK UNIT/INMATES ALL QRU." At 9:15 a.m. on December 21, 1999, another correctional officer discovered that inmate Carlos Nevis in room 552, which is in the unit for which Respondent was responsible, had hanged himself to death. The question in this case is whether Mr. Nevis hanged himself on Respondent's watch. If so, given the close proximity of the hanging body to the door window through which an officer makes a visual inspection of the cell, the inference readily follows that Respondent did not conduct a visual check of Mr. Nevis's cell, as Respondent indicated he had done on the Visual Checks log. When the body of Mr. Nevis was found, it was already displaying the effects of rigor mortis. The one witness who had indicated otherwise retreated from his earlier statement and, visibly uncomfortable, testified only that he could not recall if the body felt stiff or hard. Four other witnesses testified that the body was stiff to the touch when it was discovered. The time of death is contested by two expert witnesses. Petitioner relies on the Chief Medical Examiner for Miami-Dade County. He conducted an autopsy and found substantially digested food in Mr. Nevis's stomach. The food appeared to be a green vegetable and red beans, as well as a tan fluid of less than one cup in volume. The food was from dinner on the evening of December 20, not the 1:00 a.m. breakfast on December 21, which had no vegetables. Considering the witness reports of body stiffness, Petitioner's expert concluded that Mr. Nevis died not much after 4:00 a.m.--and well prior to 6:00 a.m.--on December 21. The expert also noted that the fire rescue squad declared Mr. Nevis dead at 9:22 a.m.--two minutes after they arrived at the scene-- and the absence of any indication of chest compressions, bagging, or ventilation is consistent with the finding that Mr. Nevis had been dead several hours by the time his body was discovered at 9:15 a.m. Respondent's expert has served as the regional medical examiner, Deputy Chief Medical Examiner, and Medical Examiner for Dade County since 1972 and is now a forensic pathologist consultant. However, Respondent's expert could not adequately account for the partially digested food found in Mr. Nevis's stomach. Respondent's expert tried to explain that emotional stress would slow digestion, but Petitioner's expert countered convincingly that many persons who have decided to end their lives find peace in their final hours--a premise that would be consistent with the fact that Mr. Nevis had the presence of mind to prepare a final note to his girlfriend and tuck a Bible into his waistband prior to hanging himself. Even Respondent's expert had trouble establishing a time of death considerably past 6:00 a.m. Called as a witness in his own case, Respondent testified that he started the 6:00 a.m. check at 5:45 a.m., and a visual check of the entire 48-room unit takes ten to fifteen minutes to complete. Respondent thus testified that he saw Mr. Nevis alive a few minutes before 6:00 a.m. Petitioner has proved by clear and convincing evidence that Respondent falsely noted in the Visual Checks log that he had checked Mr. Nevis's room at 6:00 a.m., or even 5:45 a.m. Despite his testimony to the contrary at the hearing, Respondent never checked the room at the round that he claimed to have performed at, or shortly before, 6:00 a.m. on December 21.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificate. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. ___ ROBERT E. MEALE 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 23rd day of April, 2003. COPIES FURNISHED: Rod Caswell, Program Director Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey Slesnick & Casey 10680 Northwest 25th Street, Suite 202 Miami, Florida 33172-2108
