The Issue Whether Respondent violated various provisions of Section 489.129(1) by failing to pay for all roofing materials used on the North Orient Road job; by filing a false payment statement and by having his permitting privilege revoked by the City of Tampa Unified Construction Trades Board.
Findings Of Fact The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes. Respondent is and has been at all times material hereto, a certified roofing contractor and a registered roofing contractor in the State of Florida, having been issued license numbers CC CO39803 and RC 049317. At all times material hereto, Respondent was the licensed qualifying agent for Jenkins Economy Roofing, Inc., for which Sharon K. Jenkins was an officer. Ed Nabakowski is, and has been at all times material hereto, the owner of the real property and improvements thereon located at 2501 North Orient Road, Tampa, Hillsborough County, Florida. R. L. Dykes is, and has been at all times material hereto, a certified general contractor duly licensed by the State of Florida. In the months proceeding July 1988, Nabakowski entered into a contract with Dykes wherein Dykes agreed to construct a commercial building upon Nabakowski's property on North Orient Road. Pursuant to that contract, Dykes entered into a subcontract on July 6, 1988, with Respondent Jenkins, doing business as Jenkins Economy Roofing, Inc., wherein Jenkins agreed to construct the roof of the building. Pursuant to the subcontract, Dykes agreed to pay Jenkins the sum of $8,487.00 which payment included costs of all materials, supplies and labor. Pursuant to the subcontract, Jenkins had the sole responsibility for ordering, arranging delivery to the site and paying for such materials and supplies as would be necessary for the construction of the roof. Jenkins construction activities commenced on July 6, 1988 and were concluded within the time contemplated by the subcontract. Greenbriar Building Materials, Inc., was, in July 1988, a supplier of building materials in Tampa, Florida. In connection with his construction of the roof, Jenkins ordered certain materials and supplies from Greenbriar which were delivered to the construction site. The materials and supplies had not been altered in their form or substance in any discernable manner between the Greenbriar warehouse and the construction site. Greenbriar maintained invoice records of the specific materials and supplies delivered to the job site. Greenbriar's records had three invoices for the North Orient Road site. The total sum of the three invoices was in the amount of $5,747.22. The invoiced price of the materials and supplies was usual and reasonable. The materials and supplies listed on the Greenbriar invoices were of such nature and quantity as would normally be used in the construction of the particular roof structure of this project. The materials and supplies listed in the invoices were used for and exhausted in the construction of the roof. By check dated August 8, 1998, Dykes paid Jenkins the sum of $6,790.00 as a draw against the total amount of the subcontract. On August 15, 1988, and as a prerequisite to receiving the draw payment a document titled "Partial Waiver of Lien" was signed by Sharon K. Jenkins as Secretary for Jenkins Economy Roofing, Inc. Under the terms of that document, Respondent warranted that " ... invoices for all materials, supplies and services provided by others ... arising out of work or items furnished to the described property, prior to the date hereto, have been paid." Greenbriar recorded a Claim of Lien in the Official Records of Hillsborough County, Florida, on September 19, 1988, securing the debt for roofing materials delivered to the job site. The lien was in the exact amount of the sum of the three Greenbriar invoices, to wit: $5,747.22. In the text of the Claim of Lien which was executed under oath by Greenbriar, Notice to Owner was certified as having been served on July 26, 1988. There was not and has not been any dispute as to the validity of the lien and all interested parties have acted in accord with the lien's validity. By certified letter dated September 28, 1988, Greenbriar made formal demand of the owner, Nabakowski, for payment of the amount of the Claim of Lien under threat of foreclosure. Nabakowski communicated with Dykes and in accord with professional responsibility, Dykes paid the full amount of the debt due to Greenbriar. Dykes payment to Greenbriar resulted in the satisfaction of the lien against the owners property on December 12, 1988. Dykes was financially harmed by paying the amount necessary to secure the satisfaction of the lien against the owner's property. It caused him to twice pay for the same building materials, since he had already paid Jenkins the amount necessary to pay Greenbriar at the time of his drab on August 8, 1988. Jenkins Economy Roofing had not paid the debt due to Greenbriar for materials supplied to this job at the time of signing the Partial Waiver of Lien. Jenkins Economy Roofing, Inc., did not pay the debt due to Greenbriar for materials supplied to his job site at any time thereafter. Pursuant to a formal complaint filed by Dykes on September 21, 1988, the City of Tampa, Code Compliance Section, conducted an investigation of Jenkins's transactions relative to the construction project on North Orient Road. As a result of the investigation, Jenkins was charged with violations of the City of Tampa Code, Chapter 25, Sections 25-101(6),(7),(19) and (22). A disciplinary action against Respondent was scheduled for hearing before the Unified Construction Trades Board. Respondent was notified of the disciplinary action hearing by certified mail. Respondent failed to respond to or appear at the City of Tampa disciplinary action. Pursuant to evidence produced at the hearing on January 3, 1989, the Unified Construction Trade Board unanimously determined that Respondent was guilty of violating City of Tampa Codes and disciplined Respondent by permanently revoking his permitting privileges. Respondent was notified of this local disciplinary action in writing and was verbally advised of his rights to appeal and the appellate review procedure by Darrow in a subsequent telephone conversation. Respondent did not appeal the local discipline. In Department of Professional Regulation v. Thomas L. Jenkins, DPR Case No. 89-903, which is an unrelated disciplinary action case, the Construction Industry Licensing Board entered a Final Order on November 28, 1990, finding Respondent guilty of violating local building codes, being disciplined by any municipality and misconduct in the practice of contracting, i.e., violations of Section 489.129(1)(d),(e) and (m). The Final Order imposed a fine of $2,500.00 against Respondent and ordered that his license CC CO39803 be suspended until the fine is paid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violations of Counts I through V of the Amended Administrative Complaint. It is FURTHER RECOMMENDED that the Board REVOKE the Respondent's license as a certified roofing contractor, number CC C039803, and as a registered roofing contractor, number RC 0049317, in accordance with disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of February, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1-47. Respondent's Proposed Findings of Fact. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Thomas L. Jenkins HC 73, Box 3035 Vanceburg, KY 41179 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact The Town and The Parties The City of Opa Locka is an incorporated municipality within Dade County, Florida. It is approximately 4.5 square miles, with a population of approximately 14,000, and some 5,000 registered voters. If this case is a valid example, citizens of Opa Locka actively and enthusiastically are involved in the local political process. The process can become lusty and raw with acrimony. Timothy Holmes, a citizen of Opa Locka and full-time community activist, receives disability income and is otherwise unemployed. From time to time he has provided various services or errands for attorney, James Greason, and at one time he had cards printed identifying himself as an investigator for Greason. His primary activities in recent years have been related to non- compensated membership on several municipal boards and committees. From approximately 1982, until its abolition in December 1988, Timothy Homes was on the Opa Locka Code Enforcement Board. He was then appointed to the Zoning Board of Appeals. He was on that board in 1989 when he decided to run for the city commission in the 1990 elections, for the seat occupied by Ollie B. Kelley. He did not formally file for the election until early 1990, and it is unclear when his intent was made known, but he had previously endorsed candidates in opposition to seated board members. Ollie B. Kelley is employed as a baker for the Dade County School Board. She is currently vice-mayor of Opa Locka and has served on the commission since 1986. Robert Ingram is a visiting professor at Florida Memorial College and is mayor of the City of Opa Locka, having served in that elected office for approximately 5 years. He previously served as Opa Locka police chief from 1980 to 1985. For the past three years, L. Dennis Whitt has been city manager for the City of Opa Locka. Daniel Reyes was employed as assistant to the city manager, L. Dennis Whitt, from November 28, 1989 until November 30, 1990, when he was terminated for various alleged wrongdoings. Holmes' Removal From The Board When Dennis Whitt came to the city in the middle of June 1989, he was made aware of Timothy Holmes' activities. Holmes exhibited behavior which Whitt considered inappropriate for an official of the city. Whitt received complaints and questions about Holmes as to perceived conflicts between his function as a board member and his services to Attorney Greason, who was representing parties in litigation against or involving the city. Holmes also was alleged to have gained access to city facilities based on his public office, but in furtherance of outside interests. Holmes wrote letters to the newspaper criticizing the city commission and was heard berating the commission in their meetings, calling them "Papa Doc, Mama Doc and Baby Doc", in an unflattering reference to former Haitian dictators. This latter incident was particularly irritating to Commissioner Kelley. She approached Whitt and asked whether something could be done. In response, Whitt researched the city charter for the procedure for removal of board members; he drafted an affidavit of charges based on his conversations with Commissioner Kelley and his own personal observations. He met with Commissioner Kelley on September 27, 1989 and gave her the affidavit. Although Dennis Whitt understood that board members could be removed for cause, the existing procedures applied to employees of the city, so he developed the language of the affidavit from the city's personnel rules, citing violations of a "standard of conduct", "insubordination" and "disgraceful conduct", "antagonism", interference with the proper "cooperation of employees", and use of his official capacity to solicit attorneys in litigation with the city and to conduct a private investigation of a city employee. (Petitioner's Exhibit #7) Commissioner Kelley signed the affidavit; it was presented to the full commission at the September 27th meeting; and the commission unanimously voted (with Kelley abstaining, because she brought the charges) to suspend Timothy Holmes from the Zoning Board of Appeals. The action, reflected in Resolution No. 5138, also set a public hearing on removal for November 8, 1989. At Holmes' request the hearing was continued to a later meeting, January 10, 1990. In the meantime, Dennis Whitt was instructed to conduct an investigation and bring together witnesses and evidence for the hearing. The hearing on removal of Timothy Holmes commenced at 7:00 p.m. on January 10th and proceeded into the early hours of the morning of January 11th. Timothy Holmes was represented by counsel, James H. Greason. The city was represented by its city attorney, Teretha Lundy-Thomas. Ms. Kelley testified, and did not participate as a voting member of the commission. Two law enforcement officers also testified. Three members of the public, including former mayor John Riley, testified on behalf of Timothy Holmes. The Commission voted to sustain the allegations regarding general insubordination and similar charges, but the last two charges regarding misuse of office failed for lack of majority vote. After votes on the separate charges, Dennis Whitt informed the commission that Holmes' removal from the board would need to be finalized with a resolution. The meeting was recessed to allow the city attorney and city manager to prepare the resolution. When the commission reconvened, the resolution removing Timothy Holmes passed 4-0, again with Commissioner Kelley abstaining. Holmes' Complaint To The Ethics Commission Holmes was convinced that his removal was a political vendetta. At some point after the public hearing he was in Attorney Greason's office and met Daniel Reyes. Reyes mentioned that he was with the city when the hearing took place and in Reyes' opinion, the removal in January 1990 was wrong. Reyes had heard Holmes and others referred to as "V.C." or "Viet Cong" - political enemies to be eliminated. Holmes was delighted to get information which he felt confirmed his own suspicions. Reyes executed an affidavit, dated June 11, 1991, stating among other matters, that "In January, 1990, Affiant, while so employed [as assistant to the city manager] witnessed City Manager L. Dennis Whitt and Mayor Robert Ingram conspire together to formulate changes which were used to remove Timothy Holmes as a member of the Opa-Locka Zoning Board . . . " (Petitioner's exhibit #3) That affidavit and an affidavit executed by Timothy Holmes were attached to a Commission on Ethics complaint form executed by Timothy Holmes on October 23, 1991. The affidavits and complaint to the Ethics Commission were prepared with the assistance of James Greason. At some point the above-referenced date on Reyes' affidavit, "January 1990", was struck through, and "September 1989" was substituted. Reyes initialed the change. The "corrected" date on Reyes' affidavit made the affidavit false, since Reyes was obviously not employed by the City in September 1989. He initialed the change at Greason's direction and never really looked at the date or considered it. Reyes was employed at the time of the removal hearing, but not when the process was first initiated. He was present when the resolution for removal was drafted during the January meeting's recess, but admittedly had no personal knowledge of the drafting of the initial affidavit by Whitt or the suspension resolution. The substance of Timothy Holmes' complaint to the Commission in Ethics was that Kelley, Ingram and Whitt conspired to remove him for actions protected by the First Amendment and for the purpose of discrediting him and politically damaging him in the November 1990 municipal election. He based the complaint on his own perception of the political climate and on what he understood were specific first-hand observations by Whitt's former assistant, Daniel Reyes. On January 29, 1992, the Commission issued its public report and order dismissing complaint: . . . On Friday, January 24, 1992, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to adopt the legal sufficiency analysis of its Executive Director, a copy of which is attached. Accordingly, this complaint is dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report, which shall include the complaint and all documents related to the complaint. . . . The Petition for Fees and Costs Richard Venditti has handled legal matters for the City of Opa Locka and its officials in the past. He served as special master on contract with the City and also represented a couple of commissioners who were being investigated on charges by a private citizen. He represented Dennis Whitt in an action brought by Daniel Reyes for punitive damages related to his employment termination. When Whitt, Kelley and Ingram were served with Timothy Holmes' complaint to the Ethics Commission, they consulted individually with Richard Venditti. No papers or responsive pleadings were filed by or on behalf of respondents prior to the Ethics Commission's dismissal of the complaint. However each respondent was reasonably concerned and sought their attorney's advice. Petitions for costs and attorney's fees were filed with the Commission on Ethics on behalf of respondents, Kelley, Whitt and Ingram on February 28, 1992. Richard Venditti and L. Dennis Whitt drafted the petitions with information supplied primarily by Whitt. On March 11, 1992, Richard Venditti submitted individual bills to Whitt, Kelley and Ingram in the respective amounts of $1,665.00, $690.00 and $690.00. Most of the time reflected on the bills' itemization relates to the recovery of fees. The bills have not been paid, and the respondents are each unclear as to whether the city will pay the bills for them. They understand that they are personally responsible if the city does not pay the bills. Summary of findings Timothy Holmes filed his complaint with the advice and active assistance of an attorney. He was convinced that since his removal did not relate to specific misdeeds as a Zoning Board member, the removal was politically motivated and was in retaliation for zealous exercise of his rights as a citizen. He relied on those personal convictions and on statements by Daniel Reyes, whom he chanced to meet in his attorney's office and who gave him what appeared to be reliable inside information. Further investigation would have required his confronting the very persons he believed had conspired against him. The handwritten, "corrected" date on Reyes' affidavit was an error, but not Holmes' error. It apparently was an effort by someone other than Holmes to conform the statement to the date the process was initiated. Reyes, himself, explained that the "conspiracy" he witnessed was at the time of the removal hearing. This explanation is consistent with Whitt's testimony regarding the temporary recess required to draft the removal resolution. Reyes, and not Holmes, was negligent in checking the date on his affidavit before he initialled the change. Reyes presence when Dennis Whitt and the City Attorney drafted the removal resolution during the hearing recess makes it easy to understand why he felt the resolution was a foregone conclusion: it was. Each charge against Timothy Holmes had just been voted up or down, and the resolution, according to the city manager, was a necessary final step in the process. For good reason, the vote for removal was then beyond any doubt. The claim that Ollie Kelley had no knowledge of the facts in the affidavit of charges was based on Ms. Kelley's unfamiliarity with some of the terms used by Dennis Whitt in the draft. She was required to read the charges both at the meeting when suspension was voted and at the removal hearing. She stumbled over words such as "antagonistic". These were terms from the city's personnel manual and, although they may not have been part of Ms. Kelley's vocabulary, when explained to her they adequately expressed her personal concerns about Holmes' activities. It is neither necessary nor appropriate here to unravel the tangled web of political intrigue woven by the allegations and counter-allegations of the parties in this proceeding. Like Commissioner Kelley who was ignorant as to how to proceed but instinctively felt that something was wrong, Timothy Holmes reasonably relied on the advice of others in pursuing a remedy for relief. Timothy Holmes was misguided, but was not, himself, malicious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter its Final Order denying fees and costs to Robert B. Ingram, Ollie B. Kelley and L. Dennis Whitt. DONE and RECOMMENDED this 11th day of September, 1992 in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of September, 1992. APPENDIX The following are rulings made pursuant to Section 120.59(2) F.S. the parties proposed findings of fact. Findings of Fact Proposed by Ingram, Kelley and Whitt: Adopted in substance in paragraph 7. and 3. Rejected as unnecessary or immaterial. Adopted in part in paragraph 2, otherwise rejected as unnecessary or immaterial. Adopted in part in paragraph 3, otherwise rejected as immaterial. and 7. Adopted in substance in paragraph 14. 8. - 13. Rejected as immaterial, since Holmes' reliance on Reyes was reasonable and consistent with his own perception of the events leading to his removal. 14. - 19. Rejected as unnecessary or immaterial. Adopted in substance in paragraphs 4 and 9. Adopted in part in paragraphs 10 and 26. Adopted in substance in paragraph 5. 23. - 25. Rejected as unnecessary. 26. Adopted in paragraph 19. 27. Rejected as unnecessary. 28. Adopted in paragraphs 6 and 7. Adopted in paragraph 9. Adopted in paragraphs 10 and 11. Adopted in paragraph 13. 32. - 34. Rejected as unnecessary. 35. Adopted in substance in paragraph 19. 36. - 40. Rejected as unnecessary. Findings of Fact Proposed by Holmes 1. - 3. Rejected as unnecessary. Addressed in conclusions of law. Adopted in paragraph 18. The legal argument is rejected as contrary to prior ruling by the Commission. - 7. Legal argument rejected as provided in paragraph 5, above. The conclusion is adopted generally in paragraphs 23- 27. Adopted in "Recommendation". COPIES FURNISHED: Richard Venditti, Esquire 250 Bird Road, Ste. 102 Coral Gables, FL 33146 Timothy Holmes 275 Seaman Avenue Opa Locka, FL 33054 James H. Greason, Esquire 4165 NW 135th Street Opa Locka, FL 33054 Tracey Maleszewski Clerk & Complaint Coordinator Ethics Commission Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006
The Issue Whether cause exists to terminate Respondent’s employment.
Findings Of Fact Stipulated Facts Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of the PCSO and is responsible for providing law enforcement and corrections services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline in accordance with the Civil Service Act, upon PCSO members/employees who are found to have violated rules or regulations of the PCSO. During all times pertinent to this case, Respondent was employed by the PCSO as a Deputy Sheriff, and had been so for the preceding nine years. As a Deputy Sheriff, Respondent is charged with the responsibility of complying with all applicable state laws and PCSO rules, regulations, general orders, and standard operating procedures. Respondent is familiar with the rules, regulations, general orders, and standard operating procedures of the PCSO. Respondent has been employed by the PCSO for approximately nine years, and has worked exclusively in the bureau of arrestee/prisoner (inmate) corrections and detention, where his primary responsibility is to ensure the care, custody, and control of inmates. Sergeant Bronson Taylor is assigned to the PCSO Administrative Investigations Division. Sergeant Kimon Koungras is assigned to the PCSO Administrative Investigations Division. Sergeants Taylor and Koungras investigated a complaint of misconduct that was filed against Respondent on or about December 16, 2019. The complaint of misconduct alleged that on December 10, 2019, Respondent violated General Order 3-01.1, Rule and Regulation 5.4, Duties and Responsibilities. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that he and an inmate accidentally bumped into each other during the distribution of commissary. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that he pulled out the 911 tool – which is a knife – from his tool belt, walked up to the inmate, and spoke to him. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that doing so was “a bad decision.” Respondent told the Administrative Review Board that he made a “poor decision bringing out the 911 tool as we had that interaction.” In his sworn statement given during the investigation, Respondent admitted that his conduct on December 10, 2019, violated rule 5.4. Pursuant to PCSO General Orders, the Administrative Review Board met, reviewed the disciplinary file, questioned Respondent, gave Respondent an opportunity to make a statement, and determined that based on the preponderance of the evidence, Respondent had violated the Sheriff’s rules. The Administrative Review Board sustained the violation of rule 5.4. Pursuant to Petitioner’s progressive discipline policy, the Sheriff is solely responsible for all disciplinary decisions. The determination of disciplinary action is reserved exclusively to the Sheriff. In reviewing evidence from the Administrative Investigation and the findings of the Administrative Review Board, the Sheriff sustained the rule 5.4 charge. PCSO General Order 10-2 covers discipline and ranks certain offenses. PCSO General Order 10-2 ranks offenses from Level 1 to Level 5. Level 1 offenses are the least severe; Level 5 offenses are the most severe. A violation of rule 5.4 is a Level 5 violation. The General Orders set forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the sustained violation found in Respondent’s case is 50. Under PCSO General Order 10-2, the range of discipline for a 50 point violation is a minimum five-day suspension through termination of employment. As a result of the findings of the Administrative Review Board, the Sheriff imposed discipline on Respondent. Specifically, the Sheriff terminated Respondent from his employment with PCSO. Additional Findings of Fact Paragraph 12 of the stipulated facts set forth herein, is further illuminated by the video evidence showing Respondent’s interaction with the inmate in question. The video shows that Respondent, while positioned with his back to the inmate, was having a moment of levity with a co-worker when the inmate, while walking past Respondent, appears to inadvertently make contact with Respondent’s left hand. Upon being touched by the inmate, Respondent’s demeanor instantly changes from laughing and mirthful, to authoritarian and confrontational. The video of Respondent’s interaction with the inmate does not contain audio. However, the video shows that words were exchanged between Respondent and the inmate. The video also shows that within seconds of speaking to the inmate, Respondent removed his 911 tool from his belt holster with his left hand, and then placed the tool in his right hand where he flicked his wrist so as to cause the 911 tool to snap to the fully open position. Respondent then walked towards the inmate and gestured with the 911 tool towards the inmate’s upper torso. Respondent then retracted the bladed portion of the 911 tool, smiled briefly in the direction of the inmate, and then stepped away from the inmate while re-holstering the 911 tool. The 911 tool used by Respondent is a single-edged knife, and is capable of causing bodily injury. Neither the inmate that Respondent threatened with the 911 tool, nor other witnesses to the incident, testified during the final hearing. Petitioner did, however, offer into evidence the sworn statements of the inmate and witnesses to the incident that were prepared as part of the internal investigation conducted by the PCSO. In the context of this proceeding, these hearsay statements have little, if any, evidentiary value for reasons including factual inconsistencies contained in the statements, and the inability of the fact-finder to meaningfully evaluate the credibility of the witnesses.
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, Roy Harper, violated General Order 3-01.1, rule 5.4, and terminating his employment. DONE AND ENTERED this 19th day of August, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of August, 2020. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 (eServed) Kyle J. Lee, Esquire 1971 West Lumsden Road, Suite 303 Brandon, Florida 33511 (eServed) Jewel White, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 (eServed) Shannon K. Lockheart, General Counsel Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 (eServed)
Findings Of Fact The Town of Palm Beach is a governmental unit of the State of Florida located in Palm Beach County. The town operates an advanced life-support system through its fire department. The system has two vehicles which can be used to transport injured persons to hospitals, and two which do not have that capability but can respond to first-aid calls. When a call for emergency medical services is received, a vehicle or vehicles are dispatched from one of the town's three fire stations. Personnel will provide advanced life-support assistance to injured persons, and if the injured person's life is threatened, will transport the person to a hospital. If there is a need for transportation which is not life threatening, the town requests that a private ambulance service be dispatched. The town does not routinely transport injured persons to hospitals unless there is a life-threatening circumstance. The Department of Health and Rehabilitative Services adopted Rules 10D- 66.31 through 10D-66.38, and 10D-66.39 through 10D-66.42, Florida Administrative Code, through the same rule adoption process. Rules 10D-66.31 through 10D-66.38 constituted various amendments to rules that had previously existed. They relate exclusively to ambulance services, i.e., services which routinely transport patients. They do not relate to an advanced life-support system such as that operated by the Town of Palm Beach. Rules 10D-66.39 through 10D-66.42 pertain to training and certification standards for advanced life-support service personnel, and to certification of advanced life-support providers. The rules were adopted pursuant to the legislative mandate set out at Chapter 401, Florida Statutes. Rule 10D-66.39 relates to certification, recertification, and training requirements for paramedics. Rule 10D-66.40 sets out requirements for application for certification by advanced life-support providers. Rule 10D-66.41 sets the standards and requirements for certification as an advanced life-support provider, and Rule 10D-66.42 sets out operating procedures for advanced life- support systems. A copy of these rules as filed with the Secretary of State was received in evidence at the final hearing as Hearing Officer's Exhibit 1. Rule 10D-66.40 requires that any governmental entity which is now providing advanced life-support services must apply to the Department of Health and Rehabilitative Services for certification as an advanced life-support service. The emergency medical services provided by the Town of Palm Beach clearly constitute advanced life-support services within the meanings of the rules and Chapter 401. The town is required under the rules to apply for certification, and its personnel are required to be certified. The Town of Palm Beach has not applied for certification in accordance with the Department's rules. The Department has advised the town of its obligation to apply, and in a letter dated December 10, 1979, advised the town: We would request that you return your application to this office no later than January 7, 1980. Failure to submit an application and to comply with the applicable statutory and regulatory requirements can place the Town of Palm Beach's Fire Rescue service in legal jeopardy. The town manager testified that he does not intend to apply for certification unless so advised by counsel and directed by the town commission. On or about April 24, 1978, the Department of Health and Rehabilitative Services filed a Notice of Proposed Rule Making, relating to the rules which were ultimately adopted as Rules 10D-66.39 through 10D-66.42, with the Office of the Secretary of State. Edward L. Wilson, presently the Assistant Director of the Department's Office of Emergency Medical Services, was responsible for technical input with respect to the proposed rules, and later became responsible for developing them into final form. His responsibilities included preparation of the economic impact statement. Prior to the filing of the proposed rules with the Office of the Secretary of State, Several workshops were conducted by Mr. Wilson and other employees of the Department. Advisory committees, including physicians, emergency medical providers, and medical personnel organizations, provided input, and an ad hoc task force was established to work with the rules. The task force included physicians, representatives of fire departments, and representatives of various other associations. Representatives of the Department personally contacted numerous organizations which were known to be providing emergency life-support services. Costs of implementation of new rules and the propriety of the rules were discussed. Mr. Wilson personally contacted employees of twenty such services, and other representatives of the Department contacted employees of at least fifteen other services. The rules were filed with the Office of the Secretary of State on August 21, 1978. As originally proposed, an economic impact statement was attached to the rules. In the period between the time that the rules were originally formally proposed and the time that they were finally filed with the Office of the Secretary of State, the statute regarding economic impact statements was amended by the Legislature, and the amendment became effective. The Department sought to adopt and file a new economic impact statement with the rules as finally filed. The Office of the Secretary of State refused to accept the revised economic impact statements for filing, and they have been retained in the files of the Department. The original economic impact statement contained no estimate of costs that providers of advanced life-support services would need to incur in order to qualify for certification under the rules. The amended statement contained only the following language respecting the cost to providers: It is estimated that it may be necessary for some services to increase their staffs to meet the minimum requirements established by these Rules. Further, it is estimated that some individuals may have their jobs terminated for failure to meet the minimum standards established by these Rules. There will also be some cost for those services who will be or are providing advanced life support to meet equipment requirements. Of the services contacted by Mr. Wilson, nearly all of them indicated that they already had equipment that would comply with the requirements of the new rules, and personnel who were either already certified, or eligible to be certified under the new rules. Those who did not have the equipment and personnel indicated that they were in the process of obtaining them. Mr. Wilson therefore concluded that the economic impact of the proposed rules upon providers would be negligible. The cost to any given provider could have been reliably determined by assessing the provider's equipment and personnel, and determining what new equipment and personnel would be required, and determining the cost based upon known expenses. The Town of Palm Beach has estimated that its costs in complying with the new rules would be prohibitive. An accountant retained by the town estimated that it would cost the town in excess of $30,000 to implement the new rules, and in excess of $100,000 per year on a continuing basis. The implementation costs were based upon a determination that all of the town's firemen would need to be certified as emergency medical technicians. While that might be desirable from the town's point of view, it was not established that it would be required. It appears that the town's needs for additional certified personnel could be satisfied by the addition of no more than three additional certified persons. More than three employees of the town's fire department have already applied for certification, and if they ultimately are successful in obtaining certification, the town's expenses will not be increased. The estimate of annual costs in excess of $100,000 is totally unjustified. It includes a five percent pay increase for all personnel and $44,000 fur supervisory physicians. There is no justification for basing a five percent pay increase for all fire department employees on the rule. The physician expenses were based upon the fact that the City of West Palm Beach has contracted with a physician for such services at a cost of $11,000. The accountant reasoned that since the Town of Palm Beach transports life-threatened patients to four different emergency room facilities, they would need a supervising physician at each facility. Thus, the Town of Palm Beach, which is considerably smaller than the City of West Palm Beach, would be paying four times more for the necessary medical assistance. The proposition is absurd. Most advanced life-support systems have obtained the necessary supervisory physician on a voluntary basis. The town has made no effort to determine what actual costs, if any, it would need to incur. The Town of Palm Beach was on the Department's list to receive notice of the proposed rules. It appears that no one in the town received notice of the rules. Nonetheless, the town was made aware of the public hearing that was conducted on May 18, 1978, in Tallahassee, and a representative of the town, its town manager, actually appeared at the hearing. It does not appear that the Town of Palm Beach was in any way prejudiced by the fact that it did not receive notice, nor does it appear that the failure occurred through any conscious error on the part of the Department. In fact, the Department records indicate that notice was sent.
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, by terminating Petitioner's employment with Respondent because of her race (African-American) and/or color (Black).
Findings Of Fact Petitioner, Charmaine Lewinson-Evans, was employed by Respondent, Gambro Healthcare, Inc., from November 2001 until June 2002, in the position of center director at the Ocoee, Florida, facility (Ocoee facility). The center director was the highest administrative job at the Ocoee facility. Petitioner was hired as an exempt employee, earning approximately $51,000 per year in salary. Petitioner is an African-American female and a member of a protected class. Respondent is an employer, as defined by the Florida Civil Rights Act (FCRA). Petitioner had been hired by Scott Yerger (Yerger), regional director for Respondent. He was Petitioner's immediate supervisor to whom she reported daily. At the time Yerger hired Petitioner, she had represented through the interview, her resume, and application for employment that she had an extensive nursing background, had functioned as a charge nurse, and had supervised professional and non-professional staff, as well as functioned as a team leader. However, at the time of her hire, Petitioner did not have the requisite management skills to run the Ocoee facility. Michelle Lee (Lee) was also employed by Respondent as a center director. Lee is currently the center director of the Orlando Southwest Clinic. She is also an African-American female and has reported to Yerger for the past several years. Center directors had monthly meetings wherein various matters were discussed, including monthly reports that were due to the regional director. These meetings were conducted by Yerger. Petitioner testified that she does not recall ever discussing monthly reports in the center director meetings. Lee testified that there were routine reports due each month by the center directors and that Yerger always went over the reports at each monthly meeting. Yerger testified that there were monthly meetings and that he went over the monthly reports that the center directors were to have prepared, both prior to April and after April 2002. Petitioner's failure to recall ever discussing the monthly reports at the center director meetings is not credible. Lee's testimony is credible. At the time of Petitioner's hire and for a period of time up to April 2002, all center directors had monthly reports due to Yerger by the 15th of each month. Yerger made it clear to the center directors how important it was to have the monthly reports in by the 15th of each month. The monthly reports prepared by the center directors for the regional director were vital to the operation of the clinic and the company. In April 2002, the monthly reports for the center directors changed in format, and Yerger sent out a template to all center directors for use in preparing the monthly reports. In the April 2002 center director monthly meeting, the template for the new monthly reports, which had been the subject of the e-mail previously sent to all center directors, was discussed. Petitioner testified that these monthly reports were derived from financial information she did not have and that it would take up to two days to prepare the reports. In fact, the monthly reports required of the center directors did not require financial information or a review of payroll records in order to prepare them. Any financial information necessary was already on the reports and had been placed there by Yerger. The only information required was clinical in nature and staffing reports. In fact, Petitioner did have access to financial information, if necessary, as well as instruction by Respondent as to financial information. Petitioner's role was to make certain the reports were due on time. Petitioner was also instructed on the items in the center director's checklist by use of a preceptor method. Petitioner's primary preceptor was Lee. Petitioner was instructed on patient statistics, patient liability reports, staff schedules, and erythropoietin (EPO) survey reports at healthcare plan meetings, and she was taught to close payroll and report statistics at the quarterly Quality Assurance (QA) meeting. Lee mentored Petitioner on how to do the monthly and other reports. Petitioner was trained in the same manner as all of the other center directors on the new monthly report format and how to complete the reports. During the time Petitioner was a center director, there was a total of seven center directors working under the supervision of Yerger. Petitioner was the only center director who turned in her monthly reports late without seeking prior approval to be late and without prior notification. The only center director that had difficulty with preparing the monthly reports was Petitioner. In April 2002, Petitioner received a raise from Respondent at the same time that all annual raises were given to employees. Petitioner had been with Respondent for only four months. She had not been employed long enough to warrant a formal review; as such, she was provided a standard raise of 3.5 percent. On April 10, 2002, Yerger received a letter from Rex Buchanon, M.D., medical director, indicating serious concerns about the direction of the Ocoee facility managed by Petitioner. After receipt of the letter, Yerger spoke with Petitioner about the contents. Improvement was immediately required of the Ocoee facility and Petitioner. Yerger offered to oversee the responsibilities for corrective actions and staff interviews. He directed Petitioner to focus on clinical issues. During this conversation on April 10, 2002, Yerger provided Petitioner with a series of items to complete and perform. These included cleaning and organizing her office in preparation for the visit by the Divisional President Scott Bartos; establishing a patient services committee to deal with patient complaints; completing the paperwork for Suzanne Giordano with Human Resources; locating Susan Bittner's transfer paperwork; and having the staff rounding reports pulled and ready for a Friday meeting with Elpidio Abreu, M.D. Dr. Abreu was coming to the Ocoee facility to specifically address the issues raised in the letter from Dr. Buchanon. Yerger asked Petitioner, the night before the scheduled meeting with Dr. Abreu, to pull the rounding reports and some of the QA information for him and Lee. Lee was subbing for Petitioner, who was not going to be present at the meeting. When Yerger, Lee, and Dr. Abreu arrived for the meeting the following day, no reports had been pulled, and Dr. Abreu had to wait while Lee and Yerger pulled the reports. Following the meeting on April 10, 2002, Petitioner did not clean up her office or remove the post-it notes, boxes, or clutter as requested. Petitioner did not set up the patient services committee as directed by Yerger. Five of the seven items mandated by Yerger were not completed by Petitioner by early May 2002. On May 8, 2002, Yerger held a meeting with Petitioner and went over matters that needed correcting and improving. Yerger considered this a Performance Improvement Plan. Yerger told Petitioner that although she had started out meeting expectations, she was falling behind. Yerger discussed with Petitioner her lack of follow through with tasks and initiatives that Respondent put out; her failure to complete them; her failure to meet the deadlines provided; and her failure to ask for any assistance from Yerger or to notify him of any difficulties with the reports. He also advised her that she continued to have difficulties in interactions with the staff and that she needed to maintain a professional manner with the staff at all times. He also reminded her that her body language was such that she would cross her arms and shake her head while staff were talking or giving their side of the story and, thus, she was not creating an environment for them to discuss issues. He also stated that the corrective actions process was supposed to be productive and that she was creating an opposite effect by her actions. Petitioner was given 30 days to make improvements in the areas outlined in the May 8, 2002, conversation. Contrary to Petitioner's assertions, Yerger did not ask Petitioner during the May 8, 2002, Performance Improvement Plan discussion to change places with Suzanne Giordano (Giordano). Such would have been highly ineffective and counter-productive to flip-flop positions at Ocoee facility like what was described by Petitioner in her testimony. Yerger did inquire in the May 8, 2002, meeting whether Petitioner was happy in her job as center director and whether she wanted to consider a different role in the company, but not in management. Following the Performance Improvement Plan meeting of May 8, 2002, Petitioner did not show improvement in the areas discussed. After the meeting, Petitioner continued to submit late reports, incomplete reports, and wrong reports and did not provide notification in advance of the reports being late. Petitioner acknowledged that her performance in the preparation of reports was not proficient and that she was still submitting the reports late, even after the meeting. After the Performance Improvement Plan discussion of May 8, 2002, Petitioner's attitude deteriorated. She became angry and upset and focused only on Yerger's not thinking she could perform her job. Other workers thought she was rude and abrasive. Yerger personally observed her being rude to other people and co- workers. Even when the reports were coming in late or were incomplete or wrong, Yerger would call Petitioner about this fact. However, no improvement of Petitioner's performance took place. Yerger did not have any difficulties with other center directors over performance, late reports, incomplete reports, or wrong reports. Several of the remaining seven center directors were African-American. Yerger received a written and verbal complaint from Giordano, charge nurse at the Ocoee facility, regarding Petitioner's request for Giordano to back date short-term care plans in violation of Respondent's internal policies. Anyone that is required to correct an entry in the short-term care plans is required to mark through the entry with a single line and note the "error" and put one's initials on the correction with a date. It would be improper and considered a falsification of the records to back date a document or care plan. The care plans required a nurse's signature on them contemporaneous with the date the action was taken, in order for the care plans to be complete. Several of the care plans containing the signature or initials of Petitioner were incomplete and had corrections not properly noted, in violation of Respondent's policy. Petitioner alleged that there had been a discriminatory motive in the assignment of Lee as her roommate for the center director conferences to be held in Nashville, Tennessee, and that Yerger was responsible. However, the evidence established that Yerger had nothing to do with the assignment of roommates at the Nashville conference held in June 2002. The roommate assignments were not racially motivated but were designed to accommodate the buddy system that had existed between Lee and Petitioner. After Petitioner did not show improvement following the 30-day period after May 8, 2002, Yerger, in conjunction with Loretta Castillo (Castillo), divisional human resources manager for the Southeastern Division, via telephone, discussed with Petitioner on June 21, 2002, her lack of improvement. In this conference, Petitioner admitted to Yerger that she had not been performing her job as center director up to Respondent's standards. It was determined that Petitioner would be terminated from her position as center director. During this meeting, Petitioner never complained or raised that any action by Respondent or Yerger was racially motivated. The decision to terminate Petitioner was based on Petitioner's failure to show improvement. The areas of poor performance were noted in the memorandum prepared by Yerger dated June 21, 2002, and executed by Petitioner on June 25, 2002. Petitioner had been informed she needed to have demonstrated improvements in her leadership and management skills. The memorandum outlined that Petitioner failed to demonstrate improvement and that she continued to struggle in providing leadership to employees and patients. Petitioner had recently reacted to an employee-related situation improperly by suspending an employee without further investigation or counseling with Human Resources or Yerger prior to the suspension. Petitioner's decision was based on her belief that the employee had been insubordinate to her, which was not the case. Petitioner had demonstrated poor judgment and failure to make sound decisions. Further, Petitioner had not demonstrated improvement in the areas covered by her Performance Improvement Plan of May 8, 2002. She had been unsuccessful in bridging the professional relationship with the medical doctors and staff. Yerger continued to hear about Petitioner's lack of professionalism. Based on Petitioner's inability to manage the Ocoee facility and to correct outstanding issues identified on May 8, 2002, she was terminated on June 25, 2002. The decision to terminate Petitioner was not based on her race or color, or any other impermissible factor. Petitioner was aware that Respondent had a policy for employees who felt that actions of an employee were racially motivated and for reporting any such complaint. During her employment with Respondent, Petitioner never availed herself of Respondent's policy for complaints regarding discrimination against any employee. Prior to her termination and the filing of the Equal Employment Opportunities Commission (EEOC) and FCHR charge, Petitioner never complained to anyone that any action against her had been the result of any racial animus by Yerger, nor had she expressed any such beliefs to Lee. Petitioner had been offered the opportunity of continuing to work for Respondent, but in a non-management position and not at the Ocoee facility. Petitioner declined such an option. Petitioner presented no evidence of any comparators or other center directors in regards to their treatment, performance, or handling by Respondent or Yerger. Petitioner did not present any evidence of racial motivation by Respondent during her case in chief; nor did Petitioner present any evidence of any comparators who were white who were treated any differently as a result of similar conduct on the part of Petitioner. Giordano was not a valid comparator of Petitioner since she was a charge nurse, a non- management hourly employee. Petitioner had no knowledge nor did she present any evidence of how Yerger treated the other center directors, how well they performed their jobs, how well they prepared the monthly reports, their leadership and management skills, who they may have roomed with during the Nashville conference, or that she was treated differently in regards to being able to hire employees. In fact, Petitioner testified that she had been authorized to hire employees, contrary to her EEOC charge statement.
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 which DENIES Petitioner's Charge of Discrimination and dismisses her complaint. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of December, 2003. COPIES FURNISHED: Charmaine Lewinson-Evans 9165 Pristine Circle Orlando, Florida 32818 John C. Stivarius, Jr., Esquire Epstein, Becker & Green, P.C. Resurgens Plaza, Suite 2700 945 East Paces Ferry Road Atlanta, Georgia 30326-1380 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Background During 1994, the Respondent, Craig Reeves, was working for the City as a Tradesworker in Infrastructure. While technically not in a supervisory position, as Tradesworker the Respondent functioned as a job foreman or lead man on his crew. He received jobs from his immediate supervisor, and it was the Respondent's job to mobilize his crew, assign tasks and get the jobs done. Having a background in private construction work, the Respondent brought to the job a private construction work philosophy. Essentially, he thought the workers on his crew (or any other crew) should do their jobs, and do them right, and told them so in blunt terms. While such an attitude apparently is both effective and practical in private construction work, it apparently is too harsh an attitude to be practical for use on all of the Respondent's crew (or perhaps any City work crew.) In addition, working for the City, the Respondent was unable to use (or at least carry through with) the threat that is always available in the private sector to simply fire on the spot any employee who did not meet the foreman's standards. ("Do it my way and do it right, or go find another job.") Some of the men could handle, and respond to, what amounted to the Respondent's bullying; others could not. While the Respondent was able to get all of his jobs done timely and well using his approach, he hurt the feelings of some members of his crew. Anger and resentment built up among them. Although the Respondent received high marks (exceeds standards) in most areas of his performance evaluations, for at least the three years beginning August 26, 1991, the Respondent consistently received admonishments and only satisfactory in the area of his treatment of the men working under him. The Respondent generally accepted these criticisms and agreed to try to improve in that area. However, the City also certified in the evaluations that the Respondent already was receiving all "requisite annual training," and no real improvement over the years was evident. The Charges and Investigation One Friday in June, 1994, one member of the Respondent's crew, named Ed Stiers, was found crying to himself on the job. He told the Respondent's supervisor that he could not take working under the Respondent any longer and that he wanted a demotion to get off the Respondent's crew. Just barely coherent, Stiers said something to the effect that he was sexually harassed on the job eight to nine years before and that he was afraid it was starting to happen to him again. He accused the Respondent and another man on the Respondent's crew, named Phil Manson, of sexual harassment, physical and verbal abuse and general mistreatment on the job. The following week, the Respondent's supervisors referred Stiers to the City's Human Relations Director, Eleanor Breland, to investigate the charges. Breland's investigation consisted of interviews with Stiers, the Respondent, and everyone else who was in a position to have knowledge about the charges. To assist her in her investigation, Breland tape-recorded the interviews. At times, she stopped the recording and inadvertently forgot to restart it. Also, an assistant later erroneously reused one of the tapes, erasing part of an interview. Having been told incorrectly that statements prepared from the interviews were verbatim transcripts, the Respondent became suspicious when he discovered that they were not and that one of the tapes had been erased. But it is found that there was no intentional destruction of evidence favorable to the Respondent or cover-up or any other kind of foul play involved. Name-Calling and Personal Insults It is found that the Respondent probably did call certain City employees working under him names like "stupid" and "ignorant." He also described some of the things they did on the job as being "stupid" or "ignorant" if they made mistakes on the job, or did jobs in ways that were (at least in the Respondent's mind) incorrect or inefficient or ineffective, and it was in those contexts that the Respondent might have called the workers "stupid" or "ignorant" or words to that effect. Once as Stiers and a co-worker approached a job site where the Respondent was working, the Respondent began to repeat the phrase "Stiers and queers" in a "sing-song" manner. Stiers took the Respondent to be calling him a "queer," but it was not clear from the evidence what the Respondent intended. At worst, it was proven that the Respondent's behavior was nonsensical and childish joking around on the job. While maybe not appropriate or desirable behavior on the Respondent's part, it was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. It is found that the Respondent has told City employees working under him that they "are not paid to think." This comment could be considered a personal insult directed to the employees' intelligence. However, it appears that the context of such a comment would have been an occasion when a worker under him contradicted the Respondent, saying "but I thought" or "but I think." In using the comment, the Respondent was repeating an expression he heard his immediate supervisor use. In September, 1994, in response to criticism of his use of the expression during a group meeting, the Respondent pointed out his supervisor's use of the very same expression and said that, if his supervisor agreed, he would also stop using it. There is no evidence that the Respondent continued to use the expression after the September, 1994, meeting. The Safety Sunglasses Ed Stiers insisted on wearing safety sunglasses that were so old, scratched up and dirty that he barely could see out of them. Apparently at least in part because he could not see clearly through the glasses, Stiers made mistakes on the job, such as steering wheelbarrows over form boards and into co- workers. The Respondent repeatedly admonished Stiers to get new glasses so that he could see better. Sometimes, Stiers responded to the effect that he did not want to be able to see any better. It was proven that at least once, out of anger and frustration with Stier's obstinacy, the Respondent snatched Stiers's old glasses off his face and threw them away. He got new glasses for Stiers to use instead and gave them to Stiers to put on. Cleaning the Trucks Most of the time, at the end of the work day, the Respondent assigned two men to clean out each of the City trucks used during the day. On occasion, the Respondent assigned Stiers, or another, to clean a truck alone. It was not proven that Stiers or the others were singled out to do this chore by themselves in retaliation or as a form of mistreatment or to "bust their chops." Most of the time, it was just a matter of assigning tasks in the most efficient manner. For example, Stiers was not good at finishing curbs, so the Respondent sometimes would have Stiers clean out a truck while another worker helped finish curbs. Butt-Poking and Bananas It was proven that the Respondent poked Stiers in the posterior with a rake handle while Stiers was bent over and reaching down into a hole in the ground. The Respondent's purpose was to redirect Stiers's attention to the part of the hole in which Stiers was supposed to be working. It was not proven that there was anything sexual about what the Respondent did or how he did it. One day at work, Manson noticed that Stiers seemed to be staring at a banana he was holding. Comparing the banana to a male sexual body part, Manson "joked" about Stiers wanting to eat the banana. Others, including the Respondent, also persisted in teasing Stiers about "eating bananas." While maybe not appropriate or desirable behavior on the Respondent's part, it also was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. At different times, all of them--including not only the Respondent, but Stiers as well--went "overboard" in the joking and teasing. Racial Slurs It was proven that the Respondent used racial slurs by referring to a fellow employee as a "bush nigger" and by describing a new hire (Manson) as "a white guy, not a nigger." However, it was not proven that the Respondent used these terms in the presence of African-Americans. Request for Training On or about August 11, 1994, the Respondent registered for City Human Services training in proper techniques in supervising those working under him. The training class was entitled "Basics of Supervision." He requested the class scheduled for September 20, 1994, but for reasons not made clear from the evidence, he did not attend the class until February 24, 1995, after action already had been taken to demote and suspend him. Selective Discipline The evidence disclosed that several other City employees--including many of the Respondent's accusers--were guilty of some of the same misconduct with which the City has charged the Respondent in this proceeding. The evidence did not disclose that disciplinary action has been taken against any of them except the Respondent and Manson, the two targets of Stiers's complaints. (Manson received a reprimand.) Apparently, since only the Respondent and Manson were named in Stiers's complaints, Breland's investigative report on the complaints only recommended that action be taken against them. Breland testified that she assumed that the appropriate supervisors and personnel officers would take appropriate action against others whose misconduct might be revealed in the body of her investigative report, but it is not clear from the evidence whether her assumption was correct. Disciplinary Guidelines The City of Clearwater has adopted Guidelines for Disciplinary Action, which provide in pertinent part: [The Guidelines] are structured to provide for equality of treatment in discipline. However, in recognition of the fact that the circumstances of each infraction or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline. The City took the position in this case that the Respondent's alleged actions were governed by the following Guidelines for Disciplinary Action: Level 3, #14 - Threatening, intimidating, coercing or interfering with fellow employees, supervisors or citizens at any time while on duty, reporting for duty or leaving duty an on City premises, including the use of abusive or profane language. (20 points) Level 4, #8 - Abuse, misuse, destruction or loss of any City property, including records, tools, supplies, equipment and radio network. (40 points) Level 4, #16 - Making or publishing false, vicious or malicious statement(s) concerning an employee or a supervisor where such false statement(s) are damaging to the individual's reputation. (40 points) Level 5, #13 - Immoral, unlawful or improper conduct on or off the job which is contrary to honesty, modesty or decency and which tends to affect the reputation and citizen's good will toward the City, whether or not such act is a criminal offense. (60 points) Level 5 offenses under the Guidelines justify 60 discipline points and discharge or a ten- to 20-day suspension on the first occurrence. (The Guidelines provide that "any employee who is assessed disciplinary action totalling the equivalent of 60 points within any 24-consecutive month period is subject to dismissal.") In the Guidelines, Level 5, #13, is described as a violation of paragraph (j) of Rule 14, Section 1. Level 4 offenses under the Guidelines justify: 40 discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the first occurrence; and 40 more discipline points (for a total of 80 cumulative points) and discharge or a seven- to 15-day suspension on the second occurrence. The Guidelines describe Level 4, #8, as a violation of paragraph (e) of Rule 14, Section 1; they describe Level 4, #16, as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 3 offenses under the Guidelines justify: 20 discipline points and a one- to four-day suspension on the first occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the second occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the third occurrence. In the Guidelines, Level 3, #14, is described as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 2 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 20 discipline points and a one- to four-day suspension on the second occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the third occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the fourth occurrence. Level 1 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 15 points and a one- to three-day suspension on the second occurrence; 15 more points (for a total of 30 cumulative points) and a three- to five-day suspension on the third occurrence; 15 more points (for a total of 45 cumulative points) and a five- to seven-day suspension on the fourth occurrence; and 15 more points (for a total of 60 cumulative points) and a discharge or a seven- to 15-day suspension on the fifth occurrence. Under the Guidelines, Level 2 offenses include (among others that are not pertinent): 2. Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .. The Guidelines describe this as a Rule 14(1)(e) violation. Under the Guidelines, Level 1 offenses include (among others that are not pertinent): 6. Engaging in horseplay, scuffling, malicious mischief, throwing things, distracting the attention of others, catcalls or similar types of disorderly conduct. The Guidelines describe this as a Rule 14(1)(k) violation. Although not clear from the evidence, it appears that the references in the Guidelines to paragraph (e) of Section 1 of Rule 14 are incorrect and that the correct references should have be to paragraph (f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order: (1) demoting the Respondent to Public Works Service Worker II; (2) assessing 20 discipline points against him; and (3) suspending him without pay for four days. RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0546 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted. As to the Disciplinary Guidelines, incorporated; otherwise, subordinate and unnecessary. 2.-3. Accepted and incorporated. 4. Rejected as not proven that he was "warned." Otherwise, accepted and incorporated. (The "group counseling" apparently had to do with telling the employees that they were "not paid to think." 5.-6. In part accepted and incorporated; in part rejected as not proven. Accepted but subordinate and unnecessary. Accepted but not within the charges. Rejected as not proven and as contrary to the evidence. (He was asking questions, not testifying or making admissions.) As to crying on the jobsite, accepted and incorporated; as to crying at the hearing, accepted but subordinate and unnecessary. 11.-13. Rejected as not proven and as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and as contrary to the greater weight of the evidence that it was his "only attempt." Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. (The Respondent submitted a letter with eight unnumbered paragraphs. For purposes of these rulings, the unnumbered paragraphs have been assigned consecutive numbers.) Accepted but subordinate and unnecessary. Accepted and incorporated as to the destruction of tapes. Conclusion of law as to the Respondent's rights. 3.-4. Accepted and incorporated. 5.-8. Argument, subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Mr. Craig Reeves 1501 Fredrica Avenue Clearwater, Florida 34616 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact The Respondent, Dan Gardener, is a teacher in the State of Florida, licensed with the Department of Education, holding certificate number 228351. His certificate authorizes him to teach in the areas of guidance, science, elementary education, junior college and mathematics. At the time of his arrest, described below, the Respondent was employed by the Collier County School Board as a teacher at Immokalee Middle School, in Immokalee, Florida. On or about January 4, 1983, the Respondent was employed at the Immokalee Middle School in Collier County. He had in his possession approximately one gram of cocaine and transferred and sold that cocaine to one John Wesley Riley, a confidential informant for law enforcement authorities. At the tie of this sale, the Respondent also offered to sell Riley more cocaine on the following Friday, after school hours, on or near school premises in an area where school buses were parked. As a consequence of these activities, the Respondent was arrested and charged on May 6, 1983, in the Collier County Circuit Court with the crime of selling cocaine. On May 17, 1983, he was suspended from his teaching position indefinitely, without pay, by the Collier County School Board. The fact of and the circumstances of the Respondent's arrest were known to students, parents and the Respondent's colleagues in the Immokalee community. The fact of the arrest was published in newspapers of general circulation in the Immokalee community and in Collier County. On December 12, 1983, the Circuit Court of Collier County, Florida, adjudicated the Respondent guilty of the crime of "sale of cocaine," a second degree felony in violation of Section 893.13(1)(a)(1), Florida Statutes. The Respondent was fined and sentenced to a 30-month imprisonment in the state prison, to be followed by 5 years probation. Respondent is currently serving that prison sentence. In August, 1970, the Respondent submitted an application for a teacher's certificate to the Florida Department of Education. In that application he was asked if he had ever been arrested or involved in a criminal offense other than a minor traffic violation. The Respondent replied in the negative on his application and certified thereon that all information in the application was true and correct. In August, 1978, Respondent submitted an application for an extension of his certificate to the Florida Department of Education. On that application he was asked if he had ever been convicted or had adjudication withheld in a criminal offense, other than a minor traffic violation. The Respondent replied in the negative, and certified that all information on his application was true and correct. Indeed, the Respondent's replies were deceptive and failed to include any information or reference to past criminal convictions. In this connection, on April 14, 1958, the Respondent, after entering a guilty plea in the Criminal Court of Record in Polk County, Florida, was convicted of the offenses of reckless driving and using profane, vulgar and indecent language. He was ordered to pay a $50 fine or serve 60 days in the county jail. On August 8, 1960, the Respondent entered a guilty plea to a charge of arson involved in the burning of his own automobile and the filing of a false insurance claim for insurance proceeds from his insurance company. Upon his conviction of this offense of arson, the Respondent was placed on ten years probation by the court and ordered to make full restitution to the insurance company. The Respondent having comformed to the terms of this probation, the court terminated the probation on April 28, 1966. The information which Respondent failed to disclose was material and pertained to the issue of the Respondent's fitness to receive and hold a teacher's certificate. It could have resulted in the denial of the certificate or the denial of the extension of it, had the Department been informed of the past criminal convictions. The Respondent certified his replies were true and correct, when he knew they were not. Samuel Ramey Lee, Assistant Superintendent of Schools for Collier County, was qualified as an expert witness in the fields of education and personnel administration, as well as standards of teacher effectiveness as they relate to both Collier County and the State of Florida. The fact of the Respondent's conviction for the cocaine sale was communicated and published to his colleagues in the Collier County school system and to students of that school system and their parents, and to the Immokalee community by newspapers of general circulation. Because of the great public awareness of the fact of the Respondent's conviction for the sale of cocaine, his effectiveness as an employee of the school board in Collier County has been substantially reduced. Parents in that community no longer desire the Respondent to teach their children. Because the Respondent's record of conviction by the court and disciplinary action by the school board will remain a part of his permanent record, should he transfer to any other school system in the state, his effectiveness as a teacher in the State of Florida will have been substantially reduced as to his colleagues in the teaching profession in whatever school system he should attempt to become employed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the teacher's certificate of the Respondent, Dan Gardener, be permanently revoked. DONE and ENTERED this 23rd day of October, 1984, in Tallahassee, Florida. COPIES FURNISHED: Wilson Jerry Foster, Esquire Lewis State Bank Building Suite 616 Tallahassee, Florida 32301 Linnes Finney, Jr., Esquire GARY, WILLIAMS and WALKER Post Office Box 3747 Fort Pierce, Florida 33448 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1984. Donald Griesheiiner, Executive Director Education practices Commission Knott Building Tallahassee, Florida 32301
