The Issue The issue presented is whether Respondent Community Education Partners, d/b/a Emerald Bay Academy, engaged in an unlawful employment practice as to Petitioner Adam Killick, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact On October 3, 2005, the Commission filed with the Division of Administrative Hearings Petitioner's Petition for Relief. On that same date, an Initial Order was entered by the assigned Administrative Law Judge requesting certain information for the scheduling of the final hearing in this cause. Due to the parties' failure to comply with that Order, venue rights were deemed waived. On October 14, 2005, a Notice of Hearing was entered scheduling this cause for final hearing on December 19, 2005. An Order of Pre-Hearing Instructions was entered that same day requiring the parties to disclose to each other no later than seven days before the final hearing the names of their witnesses and further requiring them to exchange copies of their exhibits by that same deadline. That Order further provided that failure to timely disclose could result in exclusion of that evidence at the final hearing. On December 12 Respondent filed its Motion for Continuance of the final hearing. On December 13 Respondent filed correspondence advising that Petitioner had agreed to the continuance, that Petitioner would be out of the country the entire month of January 2006, and that Petitioner and Respondent had agreed to certain dates for re-scheduling the final hearing. One of those dates was February 17, 2006. On December 14, 2005, an Order Granting Continuance and Re-Scheduling Hearing was entered, scheduling this cause for final hearing on February 17, 2006, validating any served subpoenas for the new date, and incorporating the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On January 26, 2006, Respondent filed its Agreed Motion for Leave to Present Testimony Telephonically, requesting that a witness who lives in New Mexico be allowed to testify telephonically at the final hearing on February 17, 2006. The Agreed Motion clearly set forth Petitioner's agreement to allow the telephonic testimony of that witness at the final hearing. On January 27, 2006, that Agreed Motion was granted, subject to Respondent making the necessary arrangements and subject to compliance with Florida Administrative Code Rule 28-106.213(5), which, inter alia, requires a notary public to be physically present with the witness to administer the oath. On February 3, 2006, Respondent filed its Notice of No Opposition advising that it did not oppose Petitioner's request for a continuance of the February 17, 2006, final hearing date. Petitioner's Motion for Continuance was filed on February 9, 2006. By Order Granting Continuance entered February 9, 2006, Petitioner's motion was granted, the final hearing scheduled for February 17, 2006, was cancelled, and the parties were afforded up to and including February 28, 2006, to advise the undersigned as to the status of this matter, as to the length of time required for the final hearing, and as to several mutually- agreeable dates for re-scheduling the final hearing. That Order further provided that failure to timely comply would result in the conclusion that this matter had been amicably resolved and the file of the Division of Administrative Hearings would be closed. Neither party filed any document or pleading on or before February 28, 2006. On March 3, 2006, Petitioner filed his first Request for Discovery and sent a letter to the Clerk of the Division requesting subpoenas and indicating that he would accommodate a hearing date convenient to the undersigned and to Respondent. The letter also advised that after he had received all materials, he needed time to prepare. The letter did not provide dates for re-scheduling the final hearing in compliance with the February 9, 2006, Order. Subpoenas were issued to Petitioner pursuant to his request in that letter. The Order Re-Scheduling Hearing entered March 6, 2006, recited the provisions of the prior Order giving a deadline for providing mutually-agreeable dates for re-scheduling the final hearing and the failure of the parties to comply with that Order. It also recited that despite the earlier Order providing for the automatic closure of the Division's file if the parties failed to timely provide dates, since Petitioner had filed documents subsequent to the deadline, it was assumed that the case had not been amicably resolved. The Order re-scheduled the final hearing in this matter to be held on March 24, 2006, validated any served subpoenas for the new date, and incorporated the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On March 14, 2006, Petitioner filed a Motion to Compel Discovery and a Motion for Rehearing. The Motion for Rehearing is confusing: it asks for reconsideration of his discovery request (no ruling had previously been requested or made); it complains about the December 2005 hearing date having been continued; it withdraws Petitioner's prior agreement to allow a witness to testify by telephone (which agreement had been subsequently ordered); it specifically states that Petitioner is not requesting another continuance but then speaks of requiring time to prepare that would extend well beyond the scheduled final hearing date. On March 16, 2006, Respondent's Response to Petitioner's Motion to Compel Discovery and Motion for Rehearing was filed, opposing the granting of Petitioner's pending motions. Petitioner's motions were heard telephonically on March 20, 2006. The manual he wanted produced, which Respondent agreed to give him, was ordered produced, but the remainder of Petitioner's requests were denied. An Order on Pending Motions was entered that same day to memorialize the rulings announced during the telephonic hearing. The Order specifically provided that Petitioner's request for a postponement of the final hearing was denied, a ruling made and discussed during the telephonic hearing. On March 17, 2006, Respondent filed its witness list, together with a cover letter advising that Respondent had provided Petitioner with its witness and exhibits lists in December. Petitioner has not filed any witness list in accordance with the Order of Pre-hearing Instructions entered October 14, 2005. On March 22, 2006, Respondent filed a Motion to Quash Subpoenas, together with a request that a hearing be held on the Motion that same day. A telephonic hearing was conducted on March 22, 2006, and an Order Granting Respondent's Motion to Quash Subpoenas was entered. During the course of that telephonic hearing, Petitioner indicated that he might not come to the hearing. In response to that statement, the undersigned explained to Petitioner that it was up to him whether he attended the hearing, dismissed his petition for relief, or withdrew his request for a hearing. The undersigned explained to the parties that the hearing would go forward as scheduled, that Petitioner had the burden of proof in this proceeding, and that not appearing or presenting evidence would prevent him from meeting his burden of proof. After normal business hours on March 22, 2006, and therefore on March 23, 2006, Petitioner filed a Facsimile Letter to Judge Rigot. Although somewhat confusing, the Letter appears to re-argue points previously argued and memorialize Petitioner's understanding (and misunderstandings) of what transpired during the telephonic hearing on March 22, 2006. At 9:30 a.m., on March 24, 2006, Respondent's attorney and its witnesses were present for the scheduled final hearing. The undersigned waited for 35 minutes before opening the record and almost 10 minutes more before closing the record, with no appearance by Petitioner or anyone on his behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing his Petition for Relief. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adam Killick Post Office Box 18331 Panama City, Florida 32417 M. Brenk Johnson Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400 Dallas, Texas 75270
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS 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 January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
Findings Of Fact Petitioner, Linda Mishko, suffers a severe hearing impairment. In December, 1985, Petitioner contacted the Respondent to apply for a temporary position of employment. Petitioner was asked to take a transcription test which she passed without any mistakes. This is not necessarily inconsistent with her handicap, however, since medical evidence indicates she is able to hear higher frequency voices, (women), more easily than lower frequency voices (men). The transcription test dictation was by a woman and she was able to satisfactorily understand what was being said. However, she has difficulty hearing lower men's voices. After the test was graded, Petitioner was asked if she would take a transcribing job. She indicated she preferred not to and instead, was referred to Grumman Aerospace, (Grumman), in Stuart where she was employed to do strictly word processing. Petitioner reported to Grumman on January 3, 1986. The documentation relating to her assignment reveals that the assignment was clearly noted to be for one month. Petitioner worked at Grumman from January 3, through May 5, 1986 and all performance ratings rendered on her during that time indicated that she was an excellent worker. She was told by Grumman personnel, and Respondent's office manager confirms this, that had they been able to do so, they would have hired her on a permanent basis. However, funding did not permit it and in May, 1987, Petitioner was released when the job for which she had been hired as a temporary employee was completed. Petitioner is convinced that she was discharged because of her handicap and contends that she was told this by her supervisor at Grumman. There is no evidence to support this contention, however. A witness who Petitioner contends would have testified to it refused to appear even though Petitioner was granted a recess during the hearing to call her again. According to Petitioner, the witness was afraid for her job, but there is no evidence that this was the case. After being released by Grumman, Petitioner was shortly thereafter called by Ms. Malodobry to take a temporary job at an attorney's office. Initially, Ms. Mishko declined to accept the job because she was afraid she would not be able to understand a man's voice in dictation. After thinking about it for a while, however, she decided she needed the work and agreed to attempt the job. Immediately upon reporting to the attorney's office, she advised him of her handicap but agreed to try to satisfy him. After 10 minutes or so of finding it difficult to understand his voice on the transcription tape, she left the job and did not return. Petitioner admits that Respondent, Manpower Temporary Services, has not discriminated against her in any way. She contends that the discrimination against her was committed by Grumman which, she believes, discharged her because of her handicap, and that Manpower is involved in a conspiracy with Grumman to cover it up. She contends that the favorable written comments on the Grumman records of her employment are lies, Ms. Malodobry is lying, and in fact anyone who doesn't support her theory of discrimination and conspiracy is lying. Petitioner admits she has no evidence of conspiracy, however, and that she filed her complaint based on her "feeling". There is no evidence that Manpower in any way discriminated against her or is in any way participating with Grumman to cover up the latter's supposed discrimination against her. In fact, there was no discrimination by Grumman. Ms. Mishko was terminated at the end of the period for which she was hired and her departure had no relationship whatever to her handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed by Linda Mishko be dismissed with prejudice. RECOMMENDED this 1st day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of September, 1987. COPIES FURNISHED: Ms. Linda Mishko 47 Southeast Erie Terrace Stuart, Florida 33497 Roy T. Mildner Esquire GOLDMAN, BRUNING & ANGELOS, P.A. 10020 South Federal Highway Port St. Lucie, Florida 33452 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following: "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action"). Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship, the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto. The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys. Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco." The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.
Findings Of Fact Jacqueline A. Irby was employed as an Allstate Insurance Agent from April 25, 1983 until her dismissal July 17, 1987. Respondent has a company policy prohibiting employees from bringing firearms into company offices or carrying them while on company business. Violation of this policy can result in termination. (Exhibit 6). Petitioner was aware of this policy when employed in 1983 (Exhibit 1). She was unsure the policy applied to her office which she rented in the building not otherwise used by Respondent. On April 14, 1987, Petitioner wrote a memo to her supervising sales manager, Randy Rouse, stating that she had witnessed Judith Gill walk into her office with a handgun and point it directly at Petitioner's client. Both Gill and Petitioner were Allstate Agents sharing office spaces if not actually partners. During the subsequent investigation of this incident, Petitioner acknowledged to Rouse that she kept a .357 Magnum in her office for her protection when she worked late at night. Both Gill and Petitioner were fired by Respondent as Allstate Agents on or about July 17, 1987. Petitioner presented Exhibits 2 through 5 representing disciplinary action taken by Respondent against male Allstate Agents. Although the maximum penalty authorized by Respondent's Policy Statements Manual (Exhibit 6) for their offenses was dismissal, each of these Agents received a lesser punishment. None of the offenses noted in Exhibits 2 through 5 involved a firearm violation. No evidence was presented regarding the Agent hired to replace Petitioner, if any, or the sex of such replacement.
The Issue Whether Petitioner committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. As a result, Respondent maintains and operates a correctional facility, commonly referred to as the Pinellas County Detention Center, or Pinellas County Jail (Jail). Petitioner, Marco Bertone, is a detention deputy employed by Respondent at the Jail and has been so employed for approximately nine years. Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioner is responsible for the care, custody, and control of inmates incarcerated at the Jail. At all times relevant hereto, Petitioner was a detention deputy with the PCSO. On March 1, 1997, Petitioner was assigned to the position of recreational officer in the section of the Jail known as the 2-F Wing. In connection with that assignment, Petitioner’s job responsibility was to oversee jail inmates engaging in exercise activities. As recreational officer, Petitioner occupied an office adjacent to the recreation yard (rec yard). The recreation office contained windows that allowed the deputy occupying the office to observe the recreational activities of the inmates. On March 1, 1997, George Robinson, an inmate at the Jail, was transported to the 2-F Wing of the Jail to engage in recreational activities. Upon arrival at the 2-F Wing, Inmate Robinson entered the rec yard adjoining the recreation office occupied by Petitioner. While in the rec yard and for no apparent reason, Inmate Robinson became disruptive and began engaging in loud verbal outbursts. Although Petitioner ordered Inmate Robinson to stop shouting, Inmate Robinson refused to do so and began repeatedly throwing a basketball against the window of the recreation office. After Inmate Robinson failed to comply with Petitioner’s orders, Petitioner called for an escort officer to return Inmate Robinson to his assigned housing area. Escort officers are detention deputies working at the Jail who are assigned the specific task of moving inmates within the facility. In response to Petitioner’s request, three escort officers arrived at the 2-F Wing. Detention Deputy Michelle Piazza (Piazza) was the first to arrive, and was followed shortly thereafter by Detention Deputies Trudy Kallis (Kallis) and Clarence Skinner (Skinner). Each had heard Petitioner’s request for an escort officer and responded to the call. After the arrival of the escort officers, Petitioner exited the recreation office and, using his key, unlocked the door to the rec yard. As the recreation officer, Petitioner also had the option of opening the rec yard door from inside the office, without the necessity of exiting the office and accessing the rec yard from the hall. Upon opening the door to the rec yard, the escort officers did not enter the rec yard to obtain custody of Inmate Robinson. Instead, Inmate Robinson was requested to exit the rec yard and he complied. After exiting the rec yard, Inmate Robinson continued shouting at Petitioner. During his verbal attacks directed toward Petitioner, Inmate Robinson claimed that he had engaged in sexual acts with Petitioner's mother and/or sister. Petitioner responded to Inmate Robinson’s verbal attacks by shouting instructions to Inmate Robinson to quiet down and return to his cell. Petitioner’s responses to Inmate Robinson also included references to sexual acts that Petitioner claimed to have engaged in with Robinson’s sister and/or mother. The verbal responses by Petitioner directed toward Inmate Robinson did not calm the inmate, but appeared to aggravate him and to escalate the ongoing verbal confrontation. Piazza took control of Inmate Robinson, and with the assistance of Skinner, escorted Robinson to an elevator a few feet from the rec yard. Piazza, believing the inmate was under control, told Petitioner that his assistance was not required and that he should return to his office. Despite Piazza’s directing Petitioner to return to his office, Petitioner did not immediately return to his assigned post, the recreation office. Instead, Petitioner followed Inmate Robinson and the escort officers down the hallway to the elevator. When the elevator door opened, Kallis entered the elevator and stood beside the control panel. Kallis remained at this position to ensure that the elevator door remained open until Inmate Robinson, Skinner, and Piazza were inside. Piazza then immediately escorted Inmate Robinson into the elevator. As she did so, both Inmate Robinson and Piazza faced the back wall of the elevator and their backs were toward the elevator door. Skinner followed Piazza and Inmate Robinson into the elevator. While being escorted into the elevator, Inmate Robinson continued to be verbally aggressive toward Petitioner. Although Inmate Robinson continued to be verbally aggressive, he did not resist or engage in threatening or violent acts. As Piazza was escorting Inmate Robinson into the elevator and after being directed to turn facing the elevator door, Inmate Robinson quickly lunged toward Petitioner who had been behind him. During the time Inmate Robinson was being escorted into the elevator, Petitioner remained in the hallway and was turning away from the elevator to return to the recreation office when he suddenly noticed, within his peripheral vision, Inmate Robinson move quickly toward him. In response to Inmate Robinson’s move toward him, Petitioner went into the elevator to defend himself. In the seconds that followed, Inmate Robinson threw punches at Petitioner, landing several blows to Petitioner's head and face. Kallis, Skinner, and Piazza remained in the elevator during the altercation. Petitioner admitted taking swings at Inmate Robinson, but contends that his actions were not done maliciously or with the intent of hitting the inmate. This is consistent with the credible testimony of Detention Deputy Piazza, a nine-year employee of the Pinellas County Sheriff’s Office. Piazza observed that Petitioner took a stance against Inmate Robinson only after the inmate lunged toward him. Based on Piazza's observation of the altercation, Petitioner appeared "controlled" and was “trying to defend [himself] and get a hold of the situation.” Finally, in light of her experience and training as a deputy, Piazza believed that because Petitioner was much shorter than Inmate Robinson, Petitioner had to reach over in order to successfully defend himself. As a result of blows landed by Inmate Robinson, Petitioner sustained two bumps above his eye and bruise marks on the right side of his face. After the altercation in the elevator, Inmate Robinson had a small scratch on his left cheek. However, it is unclear how Inmate Robinson sustained this scratch, since no one present during the struggle saw Petitioner land a blow to the inmate. During the brief struggle between Petitioner and Inmate Robinson, Kallis used her body to keep the elevator door open and called for assistance on her radio. Initially, while in the elevator, Skinner and Petitioner took control of Inmate Robinson. However, at some time prior to or while exiting the elevator, Skinner and Piazza had control of Inmate Robinson. Thereafter, Skinner and Piazza maintained control of the Inmate Robinson; they moved him down the corridor; and Skinner placed him against the wall. Almost immediately thereafter, in response to Kallis' call, Detention Deputies Jason Moyer (Moyer) and Gary Schaff (Schaff) reported to the area. Upon their arrival, Moyer and Schaff observed Skinner struggling with and attempting to control Inmate Robinson, who was standing against the corridor wall. Moyer immediately took control of Inmate Robinson’s right arm while Schaff took control of Inmate Robinson’s left arm. Skinner then handcuffed Inmate Robinson. When Moyer and Schaff arrived in response to the call for assistance, Petitioner was not with Skinner and Inmate Robinson, but was in the corridor in the vicinity of the rec yard and recreation office. Ultimately, Inmate Robinson was transported by Moyer and Schaff to the medical unit at the Jail to be examined. While being transported there, Inmate Robinson became disruptive. As a result thereof, Moyer and Schaff took Inmate Robinson to the ground in order to restrain him. Shortly after the arrival of Moyer and Schaff, Sergeant Beverly George-Williams, Petitioner's supervisor, came to the scene. After determining that the situation was under control, Sergeant George-Williams accompanied Petitioner to the medical clinic at the Jail to have his injuries examined. While going to the clinic, Sergeant George-Williams briefly obtained Petitioner’s version of the events and instructed Petitioner to complete an incident report. Similarly, the other detention deputies on the scene were expected and required to prepare incident reports. Completion of these reports by the deputies was necessary to facilitate Sergeant George-Williams' preparing the use of force report required in an incident of this nature. Pursuant to Sergeant George-Williams' instructions, Petitioner completed an incident report. In his incident report, Petitioner stated that after Inmate Robinson exited the rec yard, Petitioner, Skinner, and Piazza proceeded toward the north elevator. Noting that Inmate Robinson was “loud and agitated,” Petitioner reported that in an attempt to de-escalate the situation, he attempted to leave the area. Moreover, the report noted that as Petitioner turned to go to the recreation office, he noticed, out of his peripheral vision, Inmate Robinson coming toward him in an aggressive manner. According to Petitioner's report, after lunging toward Petitioner, Inmate Robinson threw several punches at Petitioner. The report also stated that these punches struck Petitioner in or near the eye two times with the inmate's closed fist. In his incident report, Petitioner further stated that after being struck by Inmate Robinson, he and other detention deputies, directed Inmate Robinson to the floor. During these manuevers, Petitioner stated that he was kicked in the abdomen and again struck in the face by Inmate Robinson. Additionally, Petitioner's report noted that he assisted in stopping the attack by taking control of the Inmate Robinson around the mid-torso area; directing him to the floor; and maintaining the hold until assistance arrived. Shortly after the incident, other detention deputies completed incident reports. Piazza's incident report stated that as she and Skinner escorted Inmate Robinson toward the north elevator, Petitioner was behind her. Piazza further reported that “as I was escorting Robinson into the elevator, he quickly lunged towards Bertone striking him in the face.” Finally, Piazza stated that at this time "Skinner and [Petitioner] took control of Inmate Robinson.” In the incident report completed by Kallis on March 1, 1997, she stated that Inmate Robinson was aggressive and refused to return to his housing area. Kallis' report went on to state that at the time Piazza was escorting Inmate Robinson into the north elevator [Inmate Robinson] was still being extremely aggressive toward staff members. My view became blocked by D/D Skinner. I could still hear the inmate. But I could not see him. When I then had view again he was striking D/D Bertone in the head with a closed fist. It was impossible to assist at this time due to other staff members blocking me from the inmate. To clarify her incident report, Kallis prepared a supplemental memorandum. This memorandum was prepared later the same day that the incident report had been completed, March 1, 1997. In the memorandum, Kallis noted that upon her view being cleared by Skinner, she observed Petitioner throw "approximately 5 to 8 punches toward" Inmate Robinson, and saw Inmate Robinson throw 12 to 15 punches toward Petitioner. After reviewing all the incident reports relative to the events involving Petitioner and Inmate Robinson, Sergeant Beverly George-Williams, Petitioner's supervisor, determined that the reports were confusing. Moreover, it appeared to her that “no one was sure of what the other one did or what they did themselves.” Another supervisor, Lieutenant Kimberly Klein observed that there were inconsistencies among the incident reports. These inconsistencies involved where the incident occurred, and when and if Inmate Robinson was taken down to the floor. Furthermore, Lieutenant Klein found that none of the incident reports indicated that Petitioner had actually struck Inmate Robinson. The inconsistencies and perceived incompleteness of the incident reports concerned Sergeant George-Williams and Lieutenant Klein. These concerns caused both supervisors to consider whether some of the deputies completing the reports were being completely truthful. Thereafter, an internal investigation was conducted by the Administrative Inquiry Division (AID) of the PCSO pursuant to the referral by Lieutenant Klein. During this process, investigators took sworn statements of Inmate Robinson, Petitioner, and other deputies involved in this incident. While giving his sworn statement, Petitioner denied engaging in a verbal altercation with Inmate Robinson and initiating the altercation with Robinson. Rather, Petitioner asserted that he tried to de-escalate the situation by attempting to leave the area and return to the recreation office. Petitioner stated that Inmate Robinson lunged toward him while both were still in the hallway and that the altercation progressed from the hallway into the elevator, where he took Robinson to the floor while being kicked and struck by Robinson. Petitioner further stated that the persons involved in the altercation, including himself, rolled into the hallway where, while still on the floor, he regained control of Robinson and maintained that control until assistance arrived. In clarifying his earlier statement that he took Inmate Robinson to the floor, Petitioner explained that he pulled the inmate down toward the floor, and did not intend to convey in his earlier statement that Inmate Robinson was flat on the elevator floor. Petitioner's testimony in this regard is bolstered by that of Piazza, who testified that during the altercation, everyone in the elevator was “hunched over.” The reference to "everyone" included herself, Petitioner, Skinner and Inmate Robinson, as Piazza did not recall seeing Kallis in the elevator. The record in the instant case reflects inconsistencies in the incident reports as well as in the testimony. However, for the most part, these inconsistencies reflect the various and different perceptions of the events giving rise to the subject incident. These various perceptions are likely due to: (1) the very brief time frame in which the events occurred; (2) the rapid succession of the actions involved in the episode; and (3) the respective location, view, and responsibilities of the deputies at the time the various actions occurred. Furthermore, it is not insignificant that the entire series of events took place in a very confined area. The north elevator was only 6’5” x 5’2”; the doorway of the elevator was only about three feet from the doorway of the recreation office; and both the elevator and the recreation office were on the same side of the corridor. Notwithstanding the discussion in paragraph 36, the greater weight of the evidence established that Petitioner allowed himself to become embroiled in a verbal altercation with Inmate Robinson. Regardless of the comments and vulgar insults Inmate Robinson directed toward Petitioner, Petitioner's reaction of making similar vulgar comments to Inmate Robinson, did not constitute a good correctional practice. Moreover, such behavior is not consistent with the training or conduct expected of correctional officers. The role of correctional officers in a volatile situation is to calm the situation and to maintain control, not to act in a manner which aggravates or escalates the dispute. Similarly, by following Inmate Robinson and the other detention deputies down the hall and into the elevator, Petitioner departed from good correctional practice. Rather than heeding the warning and directive of Piazza to return to his post, Petitioner proceeded to follow Inmate Robinson and the escort officers down the corridor. Petitioner's actions in this regard, again, served only to escalate and aggravate the ongoing confrontation, rather than to calm the situation. It is improper for correctional officers to engage in altercations with inmates, and to do so violates good correctional practice and the training and requirements of correctional officers. The role of a correctional officer in an altercation is to engage in defensive maneuvers and to gain control of the inmate creating the disturbance. In the instant case, after Inmate Robinson lunged toward him, Petitioner attempted to use such maneuvers to defend himself and to gain control of the inmate and the situation. Truthfulness on the part of detention deputies is also an important part of their job. It is necessary in order to maintain discipline and to preserve the integrity of the facility and function performed. Petitioner was not truthful in that he denied having a verbal altercation with Inmate Robinson. Nor was Petitioner truthful about some of the comments that he made to the inmate during the verbal altercation. Based on Piazza'a report, it appears that for a brief time, Petitioner, along with Skinner had control of Inmate Robinson. However, Petitioner did not maintain control of the inmate until the response team arrived as he stated in his incident report. After completing its investigation, the AID presented its entire investigative file to the Chain of Command Board (Board) without conclusion or recommendation. Lieutenant Klein was among the officers sitting on the Board. The Board met and, after reviewing the materials provided by AID and giving Petitioner the opportunity to respond further, sustained the complaint. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,A,006, relating to truthfulness, a Level Five violation; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,A,021, relating to the custody of arrestees/prisoners, a Level Five violation; and Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,C,067, relating to members' effectiveness in their assigned duties, a Level Three violation. Under the PCSO Guidelines, a sustained finding of two Level Five violations is the basis for assigning 60 disciplinary points. A sustained violation of one Level Three violation is the basis for assigning 15 disciplinary points. Consequently, Petitioner was assessed 75 disciplinary points. According to PCSO General Order B-15, the penalty range for a total point award of 75 points is from a 10-day suspension to termination. In the instant case, Petitioner was given the minimum discipline, a 10-day suspension without pay. Prior to the incident in this case, Petitioner has not been the subject of any other administrative investigations or disciplinary actions by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff’s Civil Service Board enter a Final Order: (1) finding Petitioner Bertone, guilty of engaging in conduct unbecoming a public servant and violating PCSO Rule C-1,V,A,006 and C-1,V,C,067; (2) dismissing the charge that Petitioner Bertone violated PCSO Rule C-1,V,A,021; and (3) suspending Petitioner Bertone without pay for eight days. DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997. COPIES FURNISHED: Marco Bertone, pro se 11999 113th Way North Largo, Florida 33778-2542 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler, and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, Esquire Pinellas County Sheriff’s Office Post Office Drawer 2500 Largo, Florida 33779-2500 William Repper, Chairperson Pinellas County Sheriff’s Civil Service Board Post Office Box 539 Clearwater, Florida 34617
The Issue Whether or not an unlawful employment practice pursuant to the Human Rights Act of 1977, Section 760.10 F.S. (1989) has occurred.
Findings Of Fact On the Thursday and Friday preceding formal hearing the undersigned attempted to contact Petitioner to determine if he was prepared for formal hearing on March 4, 1991. His phone was in working order, but no one answered at any of several times the call was placed. At the date and time of formal hearing, Petitioner did not appear, although the hearing was convened after waiting five minutes. A recess was taken for 15 minutes to permit Petitioner additional time to arrive at the place of formal hearing in the event that he had been unavoidably delayed. After waiting those 15 minutes, the undersigned searched the waiting area outside the hearing room for any black male, and none was found. The undersigned also called her DOAH office to determine if Petitioner had attempted to telephone there with any excuse for his nonappearance; the secretary to the undersigned reported that he had not telephoned. At 25 minutes after the appointed hour for commencement of the hearing, Respondent moved for default and/or judgment on the pleadings, and the undersigned indicated that the Recommended Order would reflect, to the same effect, that Petitioner's nonappearance would be deemed withdrawal of his petition.
Recommendation Accordingly, upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition herein. DONE and ENTERED this 13th day of March, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 13th day of March, 1991. COPIES FURNISHED: J. Robert Duggan, Esquire Howell, Taylor & Duggan, P.A. Post Office Box 490208 Leesburg, FL 34749-0208 Willie Ray Wright 2311 Griffin Road, Apt. A-4 Leesburg, FL 32748 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Tallahassee, FL 32399-1570
The Issue Whether Piper Aircraft, Inc. (Respondent), terminated Timothy Brooks (Petitioner) from his employment in retaliation for his complaints about the company’s treatment of Peggy Sue Pitts, a female employee who claimed sexual harassment. And, if so, whether Petitioner’s behavior was protected by law.
Findings Of Fact Petitioner is a male former employee of Respondent. His tenure with the company spanned several years. The quality of Petitioner’s work (that is, his production quality and volume) was deemed acceptable and was not the basis for discipline. Respondent laid Petitioner off in 2010 due to economic hardships of the company but rehired him in May of 2011. Thereafter, Petitioner worked continuously for Respondent until his termination in January of 2015. Respondent is a manufacturing company that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year applicable to this case. Consequently, Respondent is an “employer” as defined by section 760.02, Florida Statutes (2015), during the time frame applicable to this case. Petitioner and another of Respondent’s employees, Peggy Sue Pitts, were close friends. As such, Petitioner became increasingly concerned regarding the treatment Ms. Pitts received in the work place. Petitioner believed Ms. Pitts was the victim of inappropriate conduct and that Respondent failed to take appropriate measures to protect Ms. Pitts from harassment and inequitable treatment. Additionally, over the course of his employment with Respondent, Petitioner became concerned that employees were not treated equally in terms of compensation for the work being performed. His informal assessment led to the opinion that Ms. Pitts and others were paid less for doing the same work that others were paid more for completing. On more than one occasion Petitioner voiced his thoughts regarding the workplace inequities to management. Eventually, Petitioner’s conduct in attempting to intercede on behalf of Ms. Pitts and others led to a verbal warning documented by a Performance/Behavior Improvement Notice that notified Petitioner he was inappropriately involving himself in the personal issues of his co-workers to the detriment of the workplace. Essentially, Respondent wanted Petitioner to mind his own business. The warning noted above was issued on March 10, 2014. At the time of the warning noted above, Petitioner was directed to contact Respondent’s Human Resources Office if he felt that the company needed to be made aware of a concern. Respondent did not want Petitioner raising issues with co-workers to stir up matters that should be addressed elsewhere. Petitioner refused to sign the warning notice. Petitioner continued to discuss the perceived inequities with co-workers. On July 10, 2014, Respondent issued a written warning, Performance/Behavior Improvement Notice, which cited similar matters as before. Petitioner was warned that it was his “last chance” to stop meddling in the business matters of others. Further, Petitioner was transferred to another department within the company. In response to the second reprimand, Petitioner met with James Funk, Respondent’s chief operating officer, and expressed his concern that he had been unfairly treated. Mr. Funk advised Petitioner to take his issue to the company’s Peer Review Committee. The Peer Review Committee had the authority to review employee disciplinary actions up to and including termination. Moreover, if the committee determined that Petitioner had been unfairly treated, its finding and recommendation to the Respondent would be accepted. In this case, however, the Peer Review Committee did not find the reprimand to be inappropriate. The “last chance” warning became the final disciplinary ruling on the matter. Over the course of the next four or five months Ms. Pitts, who was by now Petitioner’s girlfriend or fiancé, continued to be frustrated by her perception of the treatment she received in the workplace. On the morning of January 8, 2015, Ms. Pitts decided to resign from her employment with Respondent. Ms. Pitts asked Petitioner to turn in her employee badge and stamp for her. On the afternoon of January 8, 2015, Petitioner went to the executive offices to talk to Mr. Funk regarding Ms. Pitts’ resignation. Kathy Flynn, Mr. Funk’s executive assistant, assisted Petitioner and gave him Mr. Funk’s email address. During the course of his exchange with Ms. Flynn, Petitioner expressed his displeasure with Jimmy Barnett and Tim Smith, whom he blamed for the perceived treatment Ms. Pitts had endured. In discussing the matter, Petitioner expressed his anger and desire to “beat the shit out of someone.” Petitioner called Mr. Barnett and Mr. Smith “pieces of shit.” Ms. Flynn memorialized the comments later that afternoon. Next, Petitioner went to Mr. Barnett’s office and turned in Ms. Pitts’ badge and stamp and told Mr. Barnett that Ms. Pitts was quitting. Petitioner told Mr. Barnett that he was so angry he could throw him (Mr. Barnett) out the window. In response, Mr. Barnett called Mr. Smith and asked for a meeting with Petitioner. Mr. Barnett and Petitioner joined Mr. Smith in Smith’s office. When offered a seat, Petitioner declined and stated he was too upset. Mr. Barnett asked Petitioner to confirm his previous comments and he did. Petitioner confirmed that he was upset to the point of throwing Mr. Barnett out the window. Given Petitioner’s agitated state and verbal threats, Mr. Barnett and Mr. Smith wrote notes to Mr. Funk recommending that Respondent issue a suspension and written warning to Petitioner. Instead, Mr. Funk determined that Petitioner’s conduct violated his “last chance” warning. Taken in totality, Petitioner’s comments to Ms. Flynn and his comments to Mr. Barnett and to Mr. Smith evidenced to Mr. Funk that Petitioner should be removed from the workplace. To that end, Mr. Funk authorized a Notice of Employment Termination on January 12, 2015, and Respondent officially ended Petitioner’s employment with the company on that date. Petitioner refused to sign the notice. Petitioner timely filed a charge of discrimination with the FCHR regarding his termination and asserted he had been terminated in retaliation for his complaints regarding the company’s sex discrimination against another employee (Ms. Pitts). On May 20, 2016, FCHR issued its determination of no reasonable cause. After Petitioner timely filed a petition challenging that decision, the matter was forwarded to the Division of Administrative Hearings for a disputed-fact hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 6th day of January, 2017, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Adrienne E. Trent, Esquire Adrienne E. Trent, P.A. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 (eServed) Ashley M. Schachter, Esquire Baker & Hostetler, LLP Suite 2300 200 South Orange Avenue Orlando, Florida 32801 (eServed) Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed)
