The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, 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 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008. COPIES FURNISHED: 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 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether Respondent, Kurn Tsuk Ho Lam (Respondent), failed to maintain good moral character required of law enforcement officers because he knowingly and willfully1 failed to report suspected child abuse and, if so, what is the appropriate penalty. 1 Pre-hearing stipulation, ¶1.
Findings Of Fact Respondent was certified as a Law Enforcement Officer in the State of Florida by the Commission on August 3, 2017, and issued Law Enforcement Certification #344454. He was employed at age 23 by the Panama City Police Department in the beginning of 2018, prior to the events that are the subject of this proceeding. As an employee of the Panama City Police Department, Respondent was required to review General Orders promulgated by his agency, to include General Order 410.00 which mandates that "all members of the Panama City Police Department shall report any known or suspected child abuse in accordance with F.S.S. 39.201." Respondent reviewed and was familiar with4 General Order 410.00, which defines child abuse as "any willful act or threatened act that results in any physical, mental, or sexual injury or harm." In February 2018, T.M., a seven-year-old minor, lived in a home with her guardians, , and their child D.G., who was a 17-year-old minor at the time. T.M. is 5. . 4 On January 25, 2018, Respondent electronically signed that he reviewed Panama City Police Department's General Order 410.00. At all pertinent times, Respondent had the understanding that T.M. was living with because she had been sexually molested by her father when she was three-years old, and that her natural father and mother were in prison. According to investigative reports and interviews, on or about Thursday night, February 8, 2018, while were at the hospital visiting a relative, D.G. licked his finger and put it in T.M.’s vagina. The reports further inform that, upon their return home, the next morning, February 9, 2018, T.M. told what D.G. purportedly did. Two days later, Sunday, February 11, 2018, called Respondent and advised him that, based on conversations that had with D.G. and his wife, T.M. had said that she had a dream that someone was touching her “down there.” 9. told Respondent that, according to D.G., D.G. was up late on the night of the incident when he heard T.M. scream, and that when D.G. went to check on her, she associated the person who she was dreaming about with D.G. During the telephone conversation, further advised Respondent that T.M. was seeing a counselor because she had recurrent night terrors as a result of being molested by her natural father years before. also told Respondent during that phone call that had stated that D.G. might need to be arrested. At the time, Respondent believed that the incident with T.M. had occurred the night before he received the February 11th phone call from , i.e., on February 10, 2018. At the hearing, Respondent credibly explained his perspective derived from his February 11, 2018, telephone conversation with : So following that conversation, I asked if he wanted to report this, which he said no, and he seemed uncertain if anything did happen, so I had no reasonable suspicion to actually [sic] upon, because he’s telling me something he was told by someone, who he’s not even sure about what to do, and I advised him, because she already seeks counseling for this, you know, night terrors, that that’s what he should do, take it to a medical professional to determine if anything did happen. Respondent believed that, the next day, Monday, February 12, 2018, took T.M. to see her counselor, and that the incident had been reported. That understanding is consistent with Petitioner’s timeline, which states that the Department of Children and Families was notified about the incident involving T.M. on Tuesday, February 13, 2018. On Tuesday, February 13, 2018, D.G. moved because , that the counselor advised that D.G. could not live in the same house with T.M. during the investigation. D.G. spent the nights of Tuesday, February 13, and Wednesday, February 14, 2018, with and their 10-month-old daughter. Respondent explained during his sworn interview at the Panama City Police Department on Thursday, February 15, 2018: . . . . On Thursday, February 15, 2018, while both were at home, D.G. asked and D.G. to take him to the police station. Apparently, D.G. had been contacted by the police and was asked to come to the police station. called his wife, who was on the way back from a job interview in the couple’s only car, and told her they needed to take D.G. to the police station. After wife arrived home, , D.G., and wife got into the car, with wife driving, and headed to the police station. On the way, wife talked to and on the phone and became emotional about taking to the police station. At some point, she stopped the car and switched places with Respondent, and Respondent drove them the rest of the way to the Panama City Police Department. That same day, February 15, 2018, the Panama City Police conducted sworn interviews with wife’s sister, and regarding the allegations and reporting of allegations against D.G.5 were arrested for not properly reporting T.M.'s accusation.6 D.G. was arrested for inappropriately touching T.M.7 The next day, February 16, 2018, law enforcement officers from the Panama City Police Department and Bay County Sheriff’s Department came to Respondent’s house and had him sign papers stating that he was being 5 There may have been other interviews in connection with the case that day, but these were the only interviews that were marked and offered as exhibits in this case. 6 On those charges, both ultimately pled no contest to a misdemeanor charge of contributing to the delinquency of a minor, for which each was adjudicated guilty, received 12 months’ probation, was required to pay fines and fees, and had to perform 50 hours of community service. 7 D.G. pled nolo contendere as a minor to a charge of felony battery under section 784.041(1), and on June 25, 2019, an Order of Delinquency Disposition was entered withholding adjudication of delinquency and imposing juvenile probation on D.G., including, inter alia, 75 hours of community service. terminated from his job as a police officer. They took all of Respondent’s police equipment and arrested him for failure to report child abuse. After his arrest for failure to report child abuse, Respondent spent one day in jail. Respondent was offered, and he accepted, a pretrial intervention consisting of 12 months of probation and 100 hours of community service. Respondent’s probation was ended early and the charge against him for failure to report child abuse was nolle prossed. The four letters submitted by Respondent are all positive letters reflecting his honesty and good moral character. The Department’s counsel stipulated that the letters could be considered as favorable mitigating factors for Respondent. The witness called by Petitioner suggested that Respondent may have been withholding information during his police interview on February 15, 2018. However, upon review of the transcript of that interview, as well as considering Respondent’s testimony and demeanor during the final hearing in this case, it is found that his testimonies regarding this matter were honest and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of April, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 2nd day of April, 2020. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Kurn Tsuk Ho Lam (Address of record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue The issues in this case, which arises from Petitioner's application for an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes, are whether Petitioner was a prevailing small business party in a disciplinary proceeding that Respondent initiated, and, if so, whether Respondent's decision to prosecute Petitioner was substantially justified or whether special circumstances exist that would make an award unjust.
Findings Of Fact On August 15, 2014, Respondent Department of Children and Families ("DCF") issued an Administrative Complaint against Petitioner Children's Hour Day School (the "School"), a licensed child care facility, charging the School with two disciplinable offenses, namely denial of food as form of punishment (Violation 1) and misrepresentation (Violation 2). The allegations of material fact in support of Violation 1 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #12, Child Discipline, [because] a child, to wit, S.B., was denied a snack as a form of punishment when the child allegedly hit her sister, L.B. who is also enrolled at the child care facility. The allegations of material fact in support of Violation 2 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #63, Misrepresentation, when it came to the Family Safety Counselor's attention that child care personnel, K.L. misrepresented and forged information, related to the child care facility when he utilized a notary stamp belonging to a former employee, namely Albarran and submitted the 2014 application for licensure to the Department with the forged notarization. The School, which requested a hearing, was found not guilty of the charges. See Dep't of Child. & Fams. v. Child.'s Hour Day Sch., Case No. 14-4539, 2015 Fla. Div. Adm. Hear. LEXIS 8 (Fla. DOAH Jan. 9, 2015; Fla. DCF Feb. 18, 2015). The Administrative Law Judge made the following findings of material fact with respect to Violation 1: S.B. and L.B. are young sisters who stayed at Respondent's day-care center in July 2014. On July 9, 2014, one of Respondent's employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. [Kevin] Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister's share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Id. at 3-4 (paragraph number omitted). The Administrative Law Judge made the following findings of material fact with respect to Violation 2: On March 25, 2014, Petitioner received from Respondent an "Application for a License to Operate a Child Care Facility" (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon's signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran's notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon's signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran's notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as "Kevin Lennon." Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Id. at 4-5 (paragraph numbers omitted). The School's owner is a corporation, Hamilton-Smith, Inc. ("HSI"), whose principal office is located in the state of Florida.1/ Kevin Lennon, who was referred to as "K.L." in the Administrative Complaint and is mentioned in the findings of fact quoted above, is HSI's sole shareholder. HSI employed fewer than 25 persons at the time DCF initiated the underlying disciplinary proceeding, and at all relevant times thereafter. Thus, HSI is a "small business party" as that term is defined in section 57.111(3)(d)1.b., Florida Statutes.2/ DCF agrees that HSI is a "prevailing" party as that term is defined in section 57.111(3)(c)1., inasmuch as a final order dismissing the charges against the School was entered in DOAH Case No. 14-4539. It is determined, as a matter of ultimate fact, that HSI is a "prevailing small business party" entitled to recover its reasonable attorney's fees and costs from DCF "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." § 57.111(4)(a), Fla. Stat. In defending against the administrative charges, HSI incurred attorney's fees in the amount of $4,515.00 and costs totaling $434.50, for which it now seeks to be reimbursed. DCF does not contest the amount or reasonableness of either sum. DCF contends, however, that an award of attorney's fees and costs is unwarranted because its actions were substantially justified. It is therefore necessary to examine the grounds upon which DCF made its decision to charge the School with the offenses alleged in the Administrative Complaint. The disciplinary action had its genesis in an anonymous complaint that, on August 6, 2014, was phoned in to the local DCF licensing office in the School's vicinity. DCF counselor Michaelyn Radcliff went out that same day to investigate, and she met Tajah Brown at the School. Ms. Brown, an employee of the School, revealed to Ms. Radcliff that she had made the complaint, which involved the ratio of staff to children. Mr. Lennon, who was Ms. Brown's boss, happened to be out of town at the time and hence was not present for Ms. Radcliff's inspection. For the next six hours or so, Ms. Brown described for Ms. Radcliff every regulatory violation or offense she could think of, which she believed the School might have committed. One such offense was the alleged withholding of S.B.'s snack. Ms. Brown had not witnessed this incident, but she knew the child's mother, E.B., and offered to ask the mother to give a statement about it, which Ms. Radcliff agreed was a good idea. E.B. met Ms. Radcliff at the School, accompanied by her daughter S.B., who was then two years old. E.B. did not have personal knowledge of the alleged denial-of-snack incident, but she had been told about the event by her sister (S.B.'s aunt) who had picked S.B. and L.B. up from day care the evening of its alleged occurrence. The aunt did not have personal knowledge of the matter either, having arrived afterward. Rather, according to E.B., the aunt had told E.B. that Mr. Lennon had told her (the aunt) that S.B. had hit L.B. and thrown a tantrum. Ms. Radcliff did not speak to the aunt, however, whose testimony about what Mr. Lennon told her actually might have been admissible at hearing under an exception to the hearsay rule3/; instead, she accepted E.B.'s statement about the incident, which was based on hearsay (Mr. Lennon's declaration) within hearsay (the aunt's declaration) and had no evidential value on its own. Ms. Radcliff did question one eyewitness: two-year- old S.B., who denied hitting her sister, complained that Mr. Lennon would not give her a snack, and accused Mr. Lennon of hitting her. S.B.'s statement, such as it was, was the only independently admissible evidence Ms. Radcliff had. She never spoke with Mr. Lennon, who was the only adult eyewitness to the alleged denial-of-snack incident.4/ As for the alleged misrepresentation, Ms. Brown informed Ms. Radcliff that she (Ms. Brown) had observed Mr. Lennon using a notary stamp belonging to Ivanne Albarran, a former employee of the School, to "notarize" signatures in Mr. Albarran's name when he was not around. Ms. Brown did not, however, identify any specific documents that she claimed to have seen Mr. Lennon fraudulently notarize in this fashion.5/ Nor, apparently, was she asked whether she was familiar with either Mr. Albarran's or Mr. Lennon's signature or if she could identify anyone's signature on any document. Ms. Radcliff herself compared the signatures on documents purportedly signed by Mr. Albarran during the time when Mr. Albarran was an employee of the School with some of his purported signatures on documents executed after his employment had ended. She concluded that the signatures looked different. Ms. Radcliff is not a forensic document examiner, however, and she has no discernable expertise in handwriting analysis. Based on her layperson's opinion about the signatures, Ms. Radcliff determined that Mr. Albarran had not executed some notarized documents that the School had submitted with its recent application for renewal licensure, even though his stamp, seal, and purported signatures appeared on them. Based on Ms. Brown's claim to have seen Mr. Lennon use Mr. Albarran's notary stamp, Ms. Radcliff concluded that Mr. Lennon had forged these signatures. Ms. Radcliff never asked Mr. Albarran whether he had signed the documents in question, nor did she speak with Mr. Lennon about the matter.
Findings Of Fact Respondent is currently certified by Petitioner as a corrections officer and holds certificate number 68-86-502-01, which was issued on March 14, 1986. At the time of the events in question, Respondent was employed as a correctional officer by the Orange County Sheriff's Office. On April 4, 1987, Sergeant Frank Fink of the Orlando Police Department was working undercover in plainclothes in Langford Park, which is located at 1800 East Central Boulevard in Orlando. Langford Park is a known gathering place for homosexuals. It is located in a residential neighborhood and near a school. Sgt. Fink's assignment was to work as part of a homosexual detail and arrest anyone who offered to commit a lewd act, which by Orlando City Ordinance 43-18 is defined as anything contrary to acceptable public standards. At approximately 6:00 p.m., while it was still daylight, Sgt. Fink observed Respondent near the restrooms. Ten to twenty minutes later, Sgt. Fink saw Respondent elsewhere in the park, talking to another man. Shortly thereafter, Sgt. Fink saw Respondent seated in a gazebo in a densely vegetated portion of the park. Sgt. Fink seated himself beside Respondent, about five feet away, and commented that it was a beautiful day and nice park. The ensuing conversation, which proceeded in a normal tone and volume so as to be clearly understood by both men, was innocuous up to the point at which Respondent asked Sgt. Fink what kind of people came to the park and Sgt. Fink answered, mostly gays. Then Respondent asked what these people did in the park, and Sgt. Fink answered, oral sex. Respondent asked if these people ever got caught, and Sgt. Fink replied, sometimes. Respondent asked where such acts took place, and Sgt. Fink told him, on the trails behind the bushes. Respondent then informed Sgt. Fink that Respondent went to a local pornographic newsstand and watched films of homosexual acts. He told Sgt. Fink that men performed oral sex on each other in booths at the newsstand. At this point, Respondent told Sgt. Fink that Respondent was thinking about performing sex with another man and that he would like to perform oral sex on Sgt. Fink. After confirming his understanding of Respondent's offer, Sgt. Fink asked if Respondent wanted to pay him money for the act, but Respondent declined. Respondent indicated that he did not want to get caught, so Sgt. Fink led him down a trail to a safe place. After leading him about 100 yards, Sgt. Fink took Respondent to police waiting in a clearing within the park where Respondent was arrested for lewd behavior.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating the requirement of good moral character and revoking his certificate as a corrections officer. DONE and RECOMMENDED this 8th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack J. Curcio, pro se 1931 Stanton Street Deltona, Florida 32738 Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 19-82- 002-10. At all times pertinent hereto, Respondent was a certified law enforcement officer, and was employed by the City of Miami Police Department as a police officer. On May 31, 1985, a drug "rip-off" occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug "rip-off" occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug "rip-off" occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Zabala did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias , Regino Capiro, and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for certain benefits that he received. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had incriminated. Mr. Pedrera refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 who knew Respondent as a fellow officer and as a former neighbor. The following allegations are based on information provided by Mr. Arias to Agent James E. Judd during the course of his debriefing by the Federal Bureau of Investigation: 2. a) On or about dates in April 1985, Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully fail or refuse to report to his superiors or otherwise take official action upon learning that fellow officers, including Felix Beruvides and Ricardo Perez, had committed, and intended to commit in the future, the crimes of possession of in excess of 28 grams of a mixture containing cocaine and theft. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully agree, conspire, combine or confederate with Felix Beruvides, Armando Estrado, Roman Rodriguez, and Armando Un-Roque, to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully attempt to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. These allegations stem from information Mr. Arias gave regarding the alleged attempted rip-off of cocaine from a freighter on the Miami River on an unknown date in 1985. The last name of the captain of this freighter was "Rhoda", and this incident was referred to at the hearing as the Rhoda incident. Respondent allegedly drove a fellow law enforcement officer, Felix Beruvides, to meet with certain men as part of a conspiracy to steal certain drugs from this freighter. These men, some of whom were referred to as Marielitos, planned to forcibly enter the freighter using their weapons and to steal cocaine that had been smuggled into Miami on the freighter. Mr. Arias was not present at this drug rip-off and his knowledge of this incident is based exclusively on his conversations with the Respondent and with Mr. Beruvides. Mr. Beruvides was not presented as a witness at the formal hearing. It was the conclusion of Mr. Arias from his conversations with Respondent that the Respondent knew that Mr. Beruvides was engaged in wrongdoing, but that Respondent had not been deeply involved in the Rhoda conspiracy. Mr. Arias testified that Respondent may have functioned as a lookout, but that, at a minimum, he was aware of this criminal activity and that he did not report it to his superiors. Mr. Arias's testimony as to conversations he had had with Respondent was vague as to when the conversation(s) occurred and as to what Respondent said. Mr. Arias had never seen Respondent in the possession of cocaine or other drugs. Lieutenant Paul Shepard testified as to certain hearsay statements and as to a photographic lineup identification made by one Armando Un Roque, one of the Marielitos supposedly involved in the Rhoda rip-off. Mr. Un Roque did not testify at the formal hearing. Mr. Un Roque identified Respondent as being the driver of a red Trans Am who met with himself, Mr. Beruvides, and others when the Rhoda drug rip-off was planned. Mr. Un Roque told Lt. Shepard that he and others boarded the freighter, but that they abandoned their attempted rip-off after realizing that the ship was too big for them to search by themselves. 1/ The evidence presented by Petitioner of Respondent's knowledge and possible participation in the Rhoda rip-off is met by Respondent's credible denial of any knowledge as to the alleged events. Although Respondent was driving a red Camaro (which is similar in style to a Trans Am) during the time these events allegedly occurred, his testimony that he had given Mr. Beruvides a ride home following their shift in his red Camaro and that they stopped at a convenience store patronized by Marielitos provides a plausible explanation as to how Mr. Un Roque acquired that information. Additionally, FBI Agent Judd testified that the Rhoda rip-off never actually occurred. The conflicts in the record relating to the allegations found in Paragraph 2(a), (b), and (c) of the Amended Administrative Complaint are resolved in favor of Respondent and against Petitioner. It is concluded that the Petitioner has failed to establish by clear and convincing evidence the factual basis for those allegations, to-wit, that he conspired to participate in this alleged criminal activity or that he was aware of that activity. The remaining allegations of the Amended Administrative Complaint pertain to information given to FBI Agent Judd by Mr. Arias during his debriefing as to money Mr. Arias gave to Respondent. Those allegations, from Paragraph 2 of the Amended Administrative Complaint, are as follows: On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully solicit, request, accept or agree to accept money, to-wit: $1,000 in U. S. currency, as an inducement to testify or inform falsely, or withhold testimony or information, upon his testimony as a witness in a proceeding instituted by a duly constituted prosecuting authority of the State. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully accept from Rudolfo Arias, $1,000 in U. S. currency, knowing or believing the money to be the proceeds of an unlawful controlled substance transaction. The original indictment of Mr. Arias was handed down in December 1985, but ended in a mistrial. Mr. Arias was among those defendants reindicted in federal court in 1986. Following the rearrest of Mr. Arias and his incarceration pending trial for his alleged involvement in the Miami River Cops cases in 1986, the court held a bond hearing to determine whether Mr. Arias would be released from jail on bond and, if so, the appropriate amount of bond. Respondent was contacted by Mr. Arias's wife and by his father and asked to testify on behalf of Mr. Arias as a character witness at the bond hearing. Respondent agreed to do so and voluntarily made himself available to the court. His testimony at the bond hearing was not necessary since the court limited the amount of character testimony that would be heard. At no time prior to this bond hearing had Respondent been offered any financial inducement to testify. Following his discharge from jail, Mr. Arias visited Respondent's home and gave to the Respondent the sum of $1,000 and a bottle of whiskey. Mr. Arias testified that the $1,000 was a gift to Respondent and was in appreciation for his being available at the bond hearing and for his willingness to testify. Mr. Arias testified that the money he gave to Respondent was drug money, but that he never told Respondent the source of the funds. Mr. Arias believed that the Respondent should have known that the source of the $1,000 was from drug transactions because he and the Respondent had engaged in general conversations as to ways to make money illegally. Respondent admitted that Mr. Arias gave to him the sum of $1,000 and the bottle of whiskey. Respondent testified that $500 of that sum and the bottle of whiskey were gifts, but that the remaining $500 of the sum given to him by Mr. Arias was in repayment of a loan that Respondent had made to Mr. Arias. Respondent testified that he had previously loaned to Mr. Arias's the sum of $500 so that Mr. Arias's girlfriend could have an abortion without Mr. Arias's wife finding out. Mr. Arias admitted that his former girlfriend had had an abortion, but he denied that he had borrowed money from Respondent to secretly pay for the abortion or that any part of the $1,000 was in repayment of a loan. This conflict in the testimony is resolved by finding that Mr. Arias gave to Respondent the sum of $1,000 and a bottle of whiskey following the July 1986 bond hearing and that at least $500 of that sum was a gift in appreciation for his being available at the bond hearing and for his willingness to testify. The evidence does not establish that the money was in exchange for Respondent's willingness to provide false testimony. Mr. Arias maintained that he was innocent of the charges brought against him until after he had given Respondent the $1,000 in July 1986. Mr. Arias did not admit his guilt to these charges until 1987. While Respondent may have had a reasonable basis upon which to speculate as to the source of the money he had received from Mr. Arias, he was not told the source of these funds by Mr. Arias and he had no direct knowledge as to the source of these funds. It is concluded that there was insufficient evidence to establish that he knew that the funds had been illegally obtained.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Edwin M. Zabala. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON 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 3rd day of July, 1991.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 25th day of June, 2009, 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 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact From 1972-1985, Petitioner was employed by the City of Jacksonville at the Jacksonville Correctional Institution. The Jacksonville Correctional Institution was and is the City's facility for confinement of offenders sentenced to nonstate prison incarceration usually lasting less than a year. The facility housed approximately three hundred (300) male and one hundred (100) female inmates. Most inmates were assigned to work crews, either in or outside the institution. The Institution also provided training and educational programs. The City is an "employer" within the meaning of Sections 760.02 and 760.10, Florida Statutes. During the entire time, Petitioner was employed at the Institution, Petitioner functioned as a male and was known as William H. Smith. Petitioner is an "individual" within the meaning of Section 760.10, Florida Statutes. 1/ The majority of people in this world are of the opinion that humankind is divided into males and females. That viewpoint is incorrect. Put simply, there is a certain percentage of humankind that are a mixture of male and female characteristics. Sometimes the mixture consists of physical characteristics and sometimes the mixture consists of opposing physical, i.e. sexual, characteristics and mental, i.e. gender, characteristics. Transsexuality is the term of common parlance for the condition known to mental health professionals as gender dysphoria. Transsexuals essentially believe themselves to be opposite in gender to their anatomic characteristics and to have been born in the wrong body. Gender dysphoria is a persistent sense of discomfort and inappropriateness about one's anatomic sex accompanied by a persistent wish to be rid of one's genitals and to live as a member of the other sex. Transsexualism is often misunderstood by lay people. It is not homosexuality and it is not transvestism. Both homosexuals and transvestites are comfortable with the gender dictated by their physical bodies. A transsexual differs markedly from persons with homosexual or transvestite traits. Transsexualism is quite literally having the physical form of one sex and the mental form of the opposite sex. Little is understood of how such halflings result. This lack of insight into the phenomena is in part due to psychology's very poor understanding of how personality and self concepts are developed in human beings and how those traits interact with sexual orientation or sexual preference. However, it can be deduced that transsexualism is a result of a very fundamental or combination of fundamental physical and mental attributes. The desire of the transsexual to live and be recognized as the opposite sex begins at a young age. The desire is nonvolitional. The person so afflicted will progressively take steps to live in the opposite sex role on a full-time basis, often resulting in hormonal treatment and surgery to make the anatomy fit the mental form. The unaltered transsexual is a tormented person, beset with fundamental conflict and persistent rejection of self. Depending on the symptoms, transsexualism can result in a handicap. Petitioner, Belinda Joelle Smith, is a transsexual. In Petitioner's case, Petitioner physically had the male form but mentally was a female. Petitioner grew up in a career Navy family. Her father was a chief petty officer. The family moved frequently because her father was often transferred from place to place. Ms. Smith first began to realize that she was a transsexual when she was around four years old. Her earliest specific memory is of a fight with her sister over who would be the mommy in playing house. Smith thereafter continued to have feelings of femininity. In growing up, she felt uncomfortable with boys and was more comfortable with girls. She cross-dressed in female clothes when home alone. All during her youth she experienced considerable personal confusion. Around age eleven, she read a magazine article about transsexuality and discovered that there was a scientific basis for the feelings she was experiencing as a male child. The article discussed surgical gender reassignment. At that time, Petitioner realized that gender reassignment was what she needed and wanted. She dressed in her sister's clothes and went to her mother to explain her new awareness. When she approached her parents about what she had discovered about herself, the reaction was one of moral indignation and she was told never to talk about it again. There was some discussion about sending her to a psychiatrist. But nothing was done. Thereafter, she kept her transsexualism hidden to the best of her ability. However, the struggle to unify the physical and mental aspects of her character was tremendous. Additionally, the struggle to maintain the outward appearance of a normal male was tremendous. Upon discharge of Smith's father from the Navy, the family settled in Liberal, Missouri, a rural farm community. Petitioner attended high school in Liberal, graduating in 1966. While in high school, she felt guilty about her transsexual feelings and attempted to deny them by excelling at traditionally male endeavors. She competed actively in sports, lettering in basketball, baseball, and track. She felt constantly conflicted. Petitioner began to date a girl while in high school. Petitioner told the girl of Petitioner's transsexuality, and she permitted Petitioner to cross- dress with her. Upon graduation, they married. However, the marriage lasted less than a year. Smith could function sexually only as long as she imagined herself as female and her partner as male. Petitioner's transsexuality was the reason for the breakup of the marriage. Petitioner commenced college, but had to withdraw because her father died. She then enlisted in the Navy to support herself and to contribute to the support of her family. She remained in the Navy for three and a half (3 1/2) years, serving as a machinist mate on a destroyer. While in the Navy, Smith consulted a Navy psychiatrist about her transsexuality. The psychiatrist diagnosed her as transsexual and explained that she might eventually have to get sexual reassignment to achieve any real sense of adjustment. Smith was retained by the Navy despite the psychiatrist's diagnosis because she was not homosexual. Smith accordingly served out her full enlistment in the Navy and in 1970 or 1971 was honorably discharged. Around the time she was leaving the Navy, Smith reconciled with her wife. Upon Petitioner's discharge from the Navy, the couple settled in Jacksonville. During the marriage, Smith lived entirely as a male with episodes of cross-dressing. A son was born to the marriage. In 1972, Petitioner began working for the correctional authority in Jacksonville. During the time she was employed by the City, the Institution was overcrowded and understaffed. She began with the City as an entry level corrections officer. She was attracted to corrections work because, "It seemed like something that might help other people. You could serve the public and maybe help rehabilitate somebody, redirect their lives." Correctional officers are considered law enforcement personnel. Such law enforcement personnel work as part of a pari-military organization in which discipline, respect and cooperation are extremely important. Correctional officers are correctional officers twenty-four hours a day. They are accountable for their behavior during duty hours because poor behavior reflects on the individual officer and the officer's employment. However, there are some very real distinctions between law enforcement police officers and law enforcement correctional officers in their respective codes of ethics and the standards to which they are held when engaged in private conduct. See General Orders Manual, G.O. III-1. One such distinction is that police officers have a higher standard of conduct in their private lives than correctional officers. During the time relevant to Petitioner's complaint as well as currently, correctional officers wore unisex uniforms. Male and female officers had common restroom facilities. Both male and female officers patrolled all parts of the institution, including inmate bathing areas. Both male and female officers had direct contact with male and female prisoners. Petitioner advanced rapidly. She was a floor officer at a time floor officers had broad responsibilities. She then became the youngest officer ever to be put in charge of road crews. Smith was made a provisional sergeant by administrative appointment six (6) months prior to being able to take the sergeants exam. This involved being advanced over officers of much greater seniority. Upon passing the sergeants exam, Smith was made a permanent sergeant. While a sergeant, she was promoted to relief watch commander (substitute watch commander) at the City Jail. Smith was the only sergeant permitted to function as a relief watch commander. As watch commander, Petitioner's job was largely administrative, and she was basically in charge of internal operations for the institution during her watch. She worked out of an office designated for the watch commanders. She spent most of her time doing evaluations, preparing reports, making assignments, working up leave schedules, holding musters, and inspecting calls. Most of her work was paperwork. She occasionally sat on disciplinary boards and participated in disciplinary hearings. Little inmate contact was required, but did occur. She supervised approximately thirty-five (35) employees. The employees included both males and females. Eventually, Petitioner was made a provisional lieutenant by administrative appointment. Again, the appointment was prior to taking the requisite examination. Once again, she was jumped over officers of much more seniority. When she took the examination, she had the highest score of those tested and was promoted to permanent lieutenant. She continued her watch commander duties, but as a watch supervisor instead of relief watch commander. Smith regularly received excellent performance evaluations. These evaluations included outstanding ratings for interactions with other people due to her knack for relating well with both coemployees and inmates. She was good at her job and was promoted more rapidly than other correctional officers. The evidence demonstrated that inmates are unpredictable as a group and that the ability of any person to gain respect and cooperation from them is a subtle quality often found in unlikely people. However, Petitioner through fourteen years of exemplary service demonstrated that she had such an ability. Ms. Smith felt her rapport with inmates resulted from "the fact that I treated them with respect as an equal and left them room to express their feelings, and just generally my conduct towards them was reflected in their conduct towards me." After nine years of unhappy marriage, Smith and her wife separated around 1980 or 1981 and eventually divorced. Petitioner's wife retained custody of their son. After separation and divorce, Smith lived as a male in public and as a female at home. However, sometime after the divorce, the boy's mother was unable to control him, and it became necessary for Petitioner to take custody of their son. Smith therefore reverted to living full-time as a male. Petitioner retained custody of her son and lived as a male until the son was approximately sixteen (16) years old. At that time, in 1984 or 1985, the son's behavioral problems had been straightened out, and he went back into residence with his mother. With the passage of years and the enforced male living, Smith found it increasingly difficult to deny her femaleness. She felt intense stress and internal conflict. She began to drink heavily. She developed a severe bleeding ulcer. Both of these problems progressively worsened. She was began to undergo a major depression and began to consider suicide. Clearly, by 1984 or 1985, Petitioner was experiencing impairment of at least two significant life functions, i.e. health and life. The impairment was directly due to her handicap of transsexualism. The impairment of those life functions causes Petitioner's handicap to fall within the definition of handicap developed under Chapter 760, Florida Statutes. By July, 1985, Smith was feeling greater and greater stress. On July 8, while on vacation, she went out in the middle of the night to a very private, unpopulated, nearby beach wearing a woman's wig, makeup, a woman's burgundy French-cut bikini bathing suit with false breasts, a pink ladies' beach coat, and pink ladies' sandals. She was dressed this way as a manifestation of her transsexuality. While out, Smith had a flat tire. A passing patrolman stopped to help with the tire. Initially, Petitioner identified herself as Barbara Joe Smith. The officer who stopped to assist Smith ran Smith's tag and discovered that Smith's true name was William, not Barbara Joe. The officer filed a general offense report of the encounter with the City. Once the report was filed, copies of this report were immediately circulated throughout the jail in sufficient quantity to "paper the walls." Smith became aware of the publication of the events of July 8, 1985. Smith did not participate or promote the circulation of the offense report and it was only the City's actions which caused the incident to become public. The next time Smith was to report to work after her encounter with the police officer, Smith was experiencing problems with her bleeding ulcer and called in sick. By that time Smith's encounter with the patrol officer had reached her superiors and Smith was summoned for a conference with the Director of Corrections and the Director of Police Services. On July 12, 1985, while still on sick leave, Petitioner at then-Director and now Sheriff, James McMillan's request visited McMillan's office to discuss the July 8 incident. The Directors wanted Smith's explanation of the incident. Smith explained that she was transsexual and that the event had been a manifestation of her transsexuality. The Directors asked Smith if she would be willing to accept counseling, but Smith explained to them that counseling would not "cure" her and that the only effective treatment would be sexual reassignment. Smith told McMillan that she was going to go ahead and pursue a sex change operation and would live as a female , including dressing as a female, for one year prior to the operation. The Directors thereupon decided that Smith could not be retained and the City's course of action would be to terminate her. They tried to persuade Smith to resign. The City's testimony is that Smith in fact agreed to resign because of concerns about the way other people would react to her. Smith denies agreeing to resign. She was, however, sympathetic to the reaction of her coworkers and in that vain indicated she would be agreeable to resigning if certain conditions could be met. These conditions were not met. Whatever may have been the perceptions of the parties, it is clear that Petitioner ultimately refused to resign, and she resisted termination. Smith's eventual termination can only be considered involuntary since she sought to remain employed and was denied the right to do so. Smith acknowledges that there would have been problems from continuing in her employment. She expected some finger pointing, name calling, and giggling from a few people. But she felt she could deal with that. The evidence did not demonstrate that any problem would have arisen from Petitioner's continued employment which would have been either dangerous or insurmountable. The City operates its civil service under a system of progressive discipline. See General Order Manual, G.O. II-4. In essence, an officer generally will not be terminated for any single incident. Termination would generally occur only after a series of reprimands and/or suspensions. Misconduct was classified as follows: Serious misconduct involves criminal violations of the law or actions on the part of the employee which warrant a detailed investigation by the Internal Affairs Unit and which could lead to suspension, demotion or termination of the employee. Examples are: commission of a crime, immoral conduct, corruption, malfeasance in office, official misconduct, D.U.I., violation of the civil rights of another, and excessive use of force. Minor misconduct is that which does not require detailed, formal investigation by the Internal Affairs Unit but may warrant informal counseling by one's supervisor, remedial training or minor disciplinary action. It is usually handled by the employee's supervisor and resolved at or below the division level. The events of July 8 did not result in an internal affairs investigation or a violation of law. On July 19, 1985, the Sheriff served Smith with a "Notice of Proposed Immediate Suspension Without Pay With a Dismissal to Follow." The Notice outlined the charges against Petitioner as follows: CHARGE I Violation of Civil Service Rule 10.06(1), which reads as follows: 10.06(1): Cause shall include, but is not limited to. . . . inefficiency or inability to perform assigned duties . . . conduct unbecoming a public employee which would affect the employee's ability to perform the duties and responsibilities of the employee's job . . . . CHARGE II Violation of Civil Service Rule 561.01(1)(a), which reads as follows: 10.06(1)(a): The employee has violated any lawful official regulation or order or failed to obey any proper direction made and given by a superior officer. and 10.06(4)(a)(5): The retention of the employee would be detrimental to the interests of the City Government." This was the first time Petitioner had been charged with conduct unbecoming an officer and was the first offense on Smith's record which could be used against her in determining any punishment. The City's disciplinary guidelines recommended that an officer receive a written reprimand for the first offense of conduct unbecoming an officer. However, the Sheriff and City did not follow the guidelines since they considered transsexuality and its treatment prohibitive of Petitioner's continued employment. Following her receipt of this Notice, Smith requested a hearing before the Jacksonville Civil Service Board (Board). The hearing was held on October 8, 1985. Petitioner was present and was represented by counsel. Several coemployees testified on behalf of Smith at the civil service hearing. No employees testified in support of the City's position that they could no longer work with Smith and had lost respect for Smith. In fact, at the administrative hearing in this case, Sheriff McMillan acknowledged that he did not expect all of Smith's coemployees to be adverse to her. He said that he had not himself lost respect for Smith and that he could have continued to maintain a satisfactory working relationship with her. The Sheriff also testified that Sheriff's office employees are carefully screened for adaptability and flexibility. The Sheriff had no reason to suppose that his compassion and humanity were greater than that of other department employees. The fact that coemployees came forward to testify for Smith before the Civil Service Board tends to confirm the Sheriff's statements about Smith's coemployees. The Board determined by a vote of four to one that the evidence at the hearing conclusively showed Smith had engaged in conduct unbecoming a public employee. Based on its findings of fact, the Board upheld the Sheriff's decision to dismiss Smith. The evidence did not support any dismissal based on Smith taking sick leave after the incident occurred. Her illness at that time was genuine. The City's entire basis for terminating Smith was supposition that as a known transsexual she would not be able to command the respect of coemployees and inmates and would generally discredit the City. Sheriff James E. McMillan (who had been the Director of Police Services at the time of Smith's termination and had subsequently become Sheriff) testified: "Q: But you didn't think that by virtue of transsexuality there had been any diminution or impairment of Lieutenant Smith's faculties, did you? A: No. "Q: So, as I understand it. Lieutenant Smith wasn't terminated because he was illegal or bad or immoral in and of itself? A: That's correct. "Q: It was entirely because of your concerns about the reactions of other people? A: That's correct, and his ability . . . not to his own doing . . . to be able to carry out his duties because of those." The City concedes that Smith's transsexuality involved no illegality or immorality. There is no contention that she ever conducted herself inappropriately in connection with her employment or on City time. There is no suggestion that she ever sought to exploit or publicize her employment with the Sheriff while cross-dressing. The City does not contend that she ever engaged in homosexual conduct or entertained any homosexual ideas. Importantly, at the time of Smith's termination in 1985, nothing had changed in Petitioner's abilities to perform her job. This was the same transsexual person who had rendered exemplary service for the past 14 years. No reasonable accommodation of Petitioner's handicap was explored or attempted by the City. Given, the Sheriff's testimony regarding his ability to accept Petitioner, the screening undergone by correctional officers, the fact that coemployees stepped forward on behalf of Smith and Smith's experience in other jobs after her termination demonstrate that the City's apprehensions were unjustified and were not concerns which could not be reasonably accommodated as was done with female correctional officers and black correctional officers when those groups entered the correctional work force. The evidence showed that inmate reaction to a transsexual is a "big unknown" and that a known male correctional officer holding himself out as a woman within the confines of a correctional facility may theoretically be disruptive and may theoretically be adverse to the best interest of the agency. However, there was no evidence which indicated that any inmates were aware of the July 8 incident or were cognizant of Petitioner's transsexuality. Additionally, the evidence demonstrated that an inmate's ability to discern a transsexual who is cross-dressing while at work may be difficult since correctional officers wear the same uniform and have strict rules regarding their appearance. See General Orders Manual, G.O. III-9. No evidence was submitted as to what changes would have occurred in Petitioner's appearance had she been allowed to be female at work. 2/ Moreover, all of the theoretical problems which may or may not occur could have been reasonably accommodated by restricting any overt appearance of Petitioner while at work. Finally, the City had extensive general orders and personnel rules and regulations requiring that employees be respectful and courteous toward one another and forbidding disrespectful, mutinous, insolent, or abusive language towards a supervisory employee or any other employee. It also had prohibitions against speaking disparagingly about any coemployees or defaming or demeaning the nationality, creed, race, or sex of any person. Various punishments or administrative actions were prescribed for violations of these orders. Such respective behavior was demanded toward black and female correctional officers. The evidence did not demonstrate any legitimate reason for not demanding such behavior toward Petitioner. After termination, Smith worked at a series of jobs. In almost each instance, her employers knew of her transsexuality and the fact that she was cross-dressing at work. Her experience at those jobs was basically what she had predicted she would have encountered if she had continued with the Sheriff's Office -- that is, initial snickering and then general acceptance. For example, she worked as part of a clean up crew at a construction site at which there were approximately (300) construction workers. Smith testified that at first she was subjected to some taunts and name calling, but that this shortly subsided. By the end of the construction site job, she had achieved general acceptance and had received apologies from various of the taunters. In most of her post- termination jobs, Smith successfully oversaw and supervised other workers. The only exception to Petitioner's successful employment occurred when she was employed by Walmart as a sales manager. Apparently, the Walmart had segregated male and female restroom facilities and there was great concern over which restroom Petitioner would use. Lost income calculated from July, 1985, until April 13, 1989, when Smith requested a continuance in this cause, was $99,070. Lost income from July, 1985, through February, 1991 was $136,435.00. (These calculations include a 20% wage differential and set-off for Petitioner's earnings). Since all the parties at one time or another requested continuances in this case, Respondent is not entitled to a set-off for the period of time after Smith's continuance of April 13, 1989. Both parties delayed the action at a time when the other party was ready to proceed. Moreover, Respondent is entitled to a set-off for any earnings of Petitioner after the April 13 continuance. Therefore, Petitioner is entitled to $136,435.00. in back pay through the end of February, 1991, plus any additions through reinstatement, less deductions for any earnings of Petitioner during this time. Smith ultimately was accepted into a gender reassignment program. As part of that program, she was required to live as a female for a two (2) year adjustment and demonstration period. She successfully accomplished the adjustment. In 1990, she underwent her gender reassignment surgery. Since then, she has been living entirely as a female and has been judicially determined to be a female. Since the gender reassignment surgery, Petitioner is now doing well. She feels much more at peace with herself and much happier than when she was a male. She has quit drinking altogether and no longer suffers from stomach ulcers. She no longer thinks about suicide. She has received acceptance by her brothers and sisters, and also by her son. She is working successfully as a salesperson for a retail tile company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a Final Order reinstating Petitioner, awarding back pay and attorneys' fees and costs and reserving jurisdiction should the parties fail to agree on appropriate reinstatement, back pay and attorney's fees and costs. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.
