Findings Of Fact At all times material hereto the Defendant was a registered real estate broker in the State of Florida, and held License Number 0060094. On or about December 5, 1978 Defendant pleaded no contest in Case No. 78-2506CF in the Seventeenth Judicial Circuit in and for Broward County, Florida, to the offenses of criminal attempt, as defined in Section 777.04(1), Florida Statutes, and indecent assault upon a female child, within the contemplation of Section 800.04, Florida Statutes. Thereafter, on or about February 9, 1979, the Defendant was committed by Judge James M. Reasbeck to the department of Health and Rehabilitative Services for care, treatment, and rehabilitation as a mentally disordered sex offender in accordance with the provisions of Section 917.19, Florida Statutes. In his order Judge Reasbeck specifically found that the Defendant "... suffers from a non-psychotic mental or emotional disorder, yet is competent and that the Defendant would be likely to commit further sex offenses if permitted to remain at liberty." Subsequently, on or about April 17, 1979, Defendant was admitted to the Mentally Disordered Sex Offender Program at South Florida State Hospital in Pembroke Pines, Florida. Defendant has remained in the Mentally Disordered Sex Offender Program at South Florida State Hospital since that time. The Defendant has made admirable efforts, both during his confinement at South Florida State Hospital and, prior to that time, in the Broward County jail to address both his problems with alcohol consumption and with his sexual deviation. The Defendant has been placed in positions of trust and responsibility in both these institutions, and has, apparently, discharged his duties in exemplary fashion. Although the Defendant has made some progress in the Mentally Disordered Sex Offender Program at South Florida State Hospital, he has not, as yet successfully completed that program. The Defendant remains within the jurisdiction of the committing court until such time as he is released from the Mentally Disordered Sex Offender Program and criminal proceedings involving the offenses to which he pleaded no contest have been concluded in the Circuit Court. In short, the Defendant is not free to come and go as he pleases, nor would he be automatically allowed to remain at liberty should he choose not to participate further in the Mentally Disordered Sex Offender Program. The Defendant did not advise The Board of the fact that he had pleaded no contest to the offenses with which he was charged within thirty days after the entry of his plea.
Findings Of Fact Petitioner, Mary Anna Cline (Ms. Cline), is a fifty-two year old female who was employed by USBI Company (USBI) from 1985 until November 15, 1994. USBI refurbishes the solid rocket boosters for the space shuttle program at the Kennedy Space Center, Brevard County, Florida. It employs substantially more than fifteen full-time employees. Ms. Cline was hired for the position of technical illustrator, which position is responsible for drawing mechanical components, doing illustration and charts, and preparing manuals and documents that apply to the day-to-day work of the company. She was a good employee and had excellent technical skills, as reflected in her performance evaluations and numerous commendations. At the time that she left the company, she was in a position titled "senior technical illustrator." In early 1992 the company had some internal reorganization, and Ms. Cline and a group of employees were transferred from Management Services to Documentation Support. The job duties remained substantially the same, but the new group also had responsibility for the Routing of Documents (RODS) program, which involved the tracing of detailed technical drawings, to be used on a computer mainframe by the "techs" (engineers). Documentation Support generated technical documentation for the rockets, all technical manuals, standard procedures, testing, fliers and presentations - generally all of the paperwork used by the company, including verbiage and graphics. The supervisor of Documentation Support, then and now, is a woman, Monica Teran. Approximately seventy-five percent of Ms. Cline's work group were women. In June 1992, Richard Bowen was hired by USBI as a technical illustrator and was assigned to Documentation Support. He became a coworker of Ms. Cline and their assigned work stations were side-by-side without a partition. Richard Bowen's two main hobbies are photography and computers. He was generally accepted as the computer expert in the work group; when there were problems with the computers, Richard Bowen could often work them out. Bowen's interest in photography is also more than a casual avocation. He attended photography school in Chicago when he was younger and worked with a modeling agency. He holds an occupational license to conduct a photography business and performs commercial photography services that do not conflict with his 9-5 job: weddings, portraits, some modeling photographs and some work with a theme park in Orlando. He is a member of the Audubon Society and takes wildlife photographs and does computer work for the organization. The Photograph Incident Staff in the work group were interested in Bowen's photographs. He brought samples of his pictures to work to show off. He usually left the pictures on his desk, face up, so that people could come to his work area and look at them. Some time in the latter months of 1992, Bowen purchased an expensive special soft-focus lens that gives the subject a soft, romantic, mystical look and deletes the wrinkles or blemishes. He discussed the lens with a fellow photographer at work and brought in a sample of photographs he had taken with the lens. Most of the pictures among the twelve to fifteen which he brought on this occasion were wildlife; there also were a few photographs of a model. She was bare-breasted, but was not exposed from the waist down. While there is no clear description of her pose in the record, she was described by some as nude and others as partially nude. None described the photographs as sexually suggestive or pornographic. In the early morning before work started, some female staff members were shuffling through the photographs. Ms. Cline was part of the group looking on. Bowen said something semi-jokingly like, "You might not want to look at these; there's a bare-breasted model." One of the women replied that it was nothing that she had not seen before, and continued shuffling through the photographs. Ms. Cline saw the model's photograph, remarked that the girl had pretty eyes, and returned to her own work station. Several months later, after a workshop that management had initiated to deal with problems in the workplace, Ms. Cline reported the photographs to Carol DuBray, Director of Human Resources and Darryl LeCanne, the immediate supervisor of Monica Teran. Ms. Cline was embarrassed by the photographs. Management's Response As soon as Ms. Cline left Darryl LaCanne's office, he called Monica Teran, and the two supervisors met with Richard Bowen. They informed him that USBI had a policy of not tolerating nude photography or pin-up calendars in the workplace and that his bringing the photographs to work was unacceptable behavior. Darryl LaCanne told Richard Bowen that the next time severe disciplinary action would be taken. Richard Bowen was also called in to speak with USBI's director of security, Barry Wysocki. Mr. Wysocki informed him that nude pictures were prohibited by USBI's regulations. Mr. Bowen received the message in clear terms that the matter was very serious. Bowen never again brought nude or semi-nude photographs to work and Ms. Cline never again saw such photographs at work. Offensive Shop Talk Work stations in the Documentation Support unit were divided into cubicles, some separated by dividers, some (Richard Bowen's and Ms. Cline's) were side by side, facing a partition with two other workers on the opposite side. Workers interacted within a small space and moved about to use different computer equipment, printers, files, and similar work tools. Among some of the workers there was occasional bawdy banter and comment about boyfriends, weekends and vacations, and the like. It was sexually oriented in a sophomoric, adolescent schoolyard manner. It included terms like "shit" and "fuck" and included conversation about "blow jobs" or "hard-ons," and other slang words involving male genitalia. With one exception, the language was not directed to Ms. Cline. That exception was one occasion when Richard Bowen responded to her criticism of some work with the expletive "fuck." Both male and female workers engaged in the banter, which was overheard by Ms. Cline and others. Ms. Cline was particularly offended by banter between Bowen and a female worker, Anna Silvestri, who occupied a workstation on the other side of the partition in front of Ms. Cline and Mr. Bowen. Ms. Silvestri sometimes initiated this banter. In May or June of 1993 Ms. Cline reported to her supervisor, Monica Teran, that Richard Bowen and Anna Silvestri used the word "fuck" and engaged in sexually explicit conversations. Ms. Teran went to her supervisor to see what to do about the complaint and Carol DuBray requested that Barry Wysocki conduct an investigation. Barry Wysocki interviewed and took statements from employees in the Document Support Unit, including Ms. Cline. She complained that Richard Bowen created a hostile environment; that she heard him say "fuck" on one occasion in the past two months and that she heard Anna Silvestri say the word on two occasions. Ms. Cline said that Bowen and Silvestri discussed Ms. Silvestri's sex life and that on one occasion Ms. Silvestri tried to discuss her sex life with Ms. Cline, but she cut her off with a comment that it was improper. Ms. Cline reported hearing Monica Teran and Beth Seaman use the word "fuck" in the work area. Bowen and Silvestri did not deny mild profanity and mildly sexual conversations. Other employees reported hearing some profanity, primarily "shit," "damn" and "bullshit." Richard Bowen and Anna Silvestri were seriously reprimanded by Barry Wysocki, by Barry Smoyer, by Darryl LaCanne and by Monica Teran. Each supervisor impressed on the two employees that the use of foul language was not tolerated and was against company policy. Barry Smoyer gave the two employees a letter "for the record," documenting the counselling session and reprimand. Monica Teran moved Ms. Cline to Anna Silvestri's workstation on the other side of the partition from Richard Bowen. She moved Anna Silvestri two cubicles away, with several partitions between her and Mr. Bowen. And George Roberts was placed next to Richard Bowen in Ms. Cline's former workstation. The intent by the supervisor was to accommodate Ms. Cline's concerns and to separate the two prime offenders. In the two years that he worked for USBI, including the time that he worked next to Richard Bowen, George Roberts heard nothing more than "hell" or "damn" from Bowen. Nevertheless, around August 1994, during her performance review, Ms. Cline informed Monica Teran that the sexual conversations were continuing. Ms. Teran informed her supervisors and another investigation commenced, this time by USBI's new security director, Al Eastlack. Mr. Eastlack conducted an interview with Ms. Cline, among others, and took her formal statement in September 1994. Barry Smoyer reviewed a draft report of Mr. Eastlack's investigation and although he understood the results were "inconclusive," Mr. Smoyer renewed his admonishments to Richard Bowen and Anna Silvestri in separate memoranda to the two, reminding them of USBI's intolerance of sexual harassment in any form and warning them that inappropriate language would result in disciplinary action. Alleged Threats After the photograph incident, but before she complained, Richard Bowen and Mary Anna Cline had a conflict over the use of some computer graphics software. Bowen was advocating one type of software that Ms. Cline opposed. Monica Teran had to intervene and instructed Ms. Cline to install the program and learn how to use it. After she complained about the photographs, Ms. Cline became convinced that Richard Bowen was going to retaliate. She complained to Monica Teran that she was afraid of Bowen but her complaints were non-specific. She began to complain of stress and sleep problems. Ms. Teran recommended that she go to the Employee Assistance Program (EAP) counsellor or to see her own counsellor or doctor. This was around the same time that Ms. Cline complained about the offensive language and conversations, and Ms. Cline took the recommendation to mean that Ms. Teran did not believe her, or that Ms. Teran felt Ms. Cline was at fault. Ms. Teran also commented to Ms. Cline that she should simply tell Bowen to stop talking like that. Another employee, Dorothy Stokey, who was offended by Bowen's use of "fuck" had told him to stop. Ms. Cline was too intimidated by him to confront him directly. Some time in the latter months of 1993, Monica Teran found Ms. Cline in the ladies' room crying and upset to the point of incoherence. Ms. Cline had overheard a conversation between Richard Bowen and Anna Silvestri involving a gun and made a connection between that and incidents of violence in the workplace and coworkers being shot. With the help of Barry Smoyer, Ms. Teran was able to get Ms. Cline out of the ladies' room and calmed down. Then, at Mr. Smoyer's direction, Ms. Teran called Ms. Silvestri and Mr. Bowen into her office to find out what had happened. Mr. Bowen did not have a gun at work and he had been discussing a gun show early that morning. Ms. Teran was satisfied that the discussion had been innocuous and reported her findings to Barry Smoyer. No other employee reported that Bowen had a gun or saw him with a gun. None, including Ms. Cline, ever complained that Bowen had threatened them with a gun. Alleged Retaliation Ms. Cline contends that USBI retaliated against her for reporting sexual harassment. Specifically she claims that her job duties were shifted from work on RODS, which she liked, to word processing, which she disliked and with which she had difficulty, due to some dyslexia. It is undisputed that Ms. Cline was a very competent graphics illustrator. She and Mr. Bowen and a couple of other employees in the unit were considered the core of the illustration function, and other employees in the unit preferred and were more skilled in the word processing and language component of the unit's responsibilities. However, the work assignments were not so clearly divided between "illustration" and "word processing." The production and modification of company manuals required both types of work. Monica Teran was interested in cross-training her staff to do a variety of tasks. There was a time, after mid-1993, when Ms. Cline's assignments involved word processing. She also continued to do a substantial amount of RODS work, as evidenced by handwritten logs maintained by the employees. Monica Teran never instructed the staffperson responsible for making assignments to remove Ms. Cline from RODS or other graphics work. RODS was not considered high profile or creative work since it primarily involved tracing technical components repetitively. There was a period when RODS work was put on hold. There was another period when temporary employees, such as George Roberts, were taken in to work exclusively on RODS. At no time during her employment with USBI was Ms. Cline demoted in job title or pay. In 1993 and 1994 her employment evaluations reflected a need to improve communications and attendance, but she was still rated "excellent," "good" and "acceptable" in all categories, and overall "excellent" and "good." There is no evidence to indicate that anyone tampered with Ms. Cline's computer or sabotaged her computer, as she claimed. On occasion it was necessary for Monica Teran or other staff to work at Ms. Cline's and other stations, to see if programs were loaded or the machine was set up properly. Although certain equipment, such as a printer, was located at an individual workstation, other staff needed access to that equipment. Job-Related Stress Ms. Cline's attendance did suffer and she did experience job-related stress. She went to an EAP counsellor and to a psychiatrist. She was on medication and there were problems with adjusting the type and amount of medication. Ms. Cline experienced sleep disorders; she reported falling asleep at the wheel of her car and had a minor accident. She also experienced other physical phenomena such as pains in her chest and arms, or numbness. Her psychiatrist diagnosed her medical condition as "adjustment reaction of adult life with mixed emotions, basically depression and anxiety." (T-415) Accommodation and Resignation Monica Teran's staff was located in two buildings: the modular unit occupied by Ms. Cline, Mr. Bowen, Ms. Silvestri and others; and another separate building which also included other USBI employees. Ms. Teran's staff was moved around routinely, as new employees were added or other work space needs arose. In Fall 1993 USBI offered to move Ms. Cline to the other building, allowing her to retain her same position and duties; she declined, and the company did not insist that she move. Later, Ms. Cline was offered a lateral position at the same pay and position level. Carol DuBray met with Ms. Cline to discuss this attempt to accommodate her. Ms. Cline also rejected that offer. She explained at hearing that she was afraid she would have been in line for a layoff, if she transferred. However, there is no competent evidence to support that fear. Ms. DuBray explained to Ms. Cline in their meeting that she would retain all benefits, including seniority. In fact, USBI has no departmental seniority policy. Seniority is based on the date an individual is hired by the company, rather than time within a department in the company. On November 15, 1994, Ms. Cline voluntarily resigned, citing "continuing stress brought on by sexual harassment, discrimination, retaliation and the flagrant disregard by USBI and its management in the handling of this problem. . . ." (Petitioner's exhibit no. 31) The Formal Complaints At the time she resigned Ms. Cline had already filed her complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC). That charge is dated December 6, 1993. The charge of discrimination alleges violations of Title VII of the Civil Rights Act, by sexual harassment and retaliation. It does not cite the Florida Civil Rights Act, Chapter 760, Florida Statutes. Pursuant to a worksharing agreement between EEOC and FCHR, the charge was sent to the Florida agency for initial investigation. That workshare agreement, which refers to the FCHR as the "FEPA," provides, in pertinent part: FILING OF CHARGES OF DISCRIMINATION In order to facilitate the filing of charges of employment discrimination, the EEOC and the FEPA each designate the other as its agent for the purpose of receiving and drafting charges. The FEPA shall take all charges alleging a violation of Title VII, ADEA, EPA, or the ADA where the parties have mutual juris- diction and refer them to the EEOC for dual filing, so long as the allegations meet the minimum requirements of those Acts. Each Agency will inform individuals of their rights to file charges with the other Agency and to assist any person alleging employment discrimination to draft a charge in a manner which will satisfy the require- ments of both agencies to the extent of their common jurisdiction. As part of the intake duties, investigators are to verify with the charging parties if they have filed a charge of discrimination with other agencies prior to filing the charge. For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrim- ination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge. * * * H. The delegation of authority to receive charges contained in Paragraph II. a. does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge. * * * DIVISION OF INITIAL CHARGE-PROCESSING RESPONSIBILITIES * * * D. EEOC will not defer or refer any charge for the FEPA to process that is not jurisdictional on its face with both Agencies. If it is apparent that one Agency might have jurisdiction when another does not, then the Charging Party will be referred to the appropriate Agency. * * * (Petitioner's exhibit no. 41) (emphasis added) A notice dated December 20, 1993, on EEOC form 212, states that the FCHR has received the charge and will initially investigate the charge. The FCHR did investigate the charge and the FCHR investigator's report is dated July 13, 1994. A document styled "Determination: No Cause" is dated August 25, 1994 and has the apparent signature of FCHR's Executive Director. An accompanying document, with the same date, is styled "Notice of Determination: No Cause" and informs Ms. Cline as complainant of her right to file her petition for relief within 35 days. The petition for relief dated September 27, 1994, was filed with FCHR, and cites the Florida Civil Rights Act of 1992, as well as Title VII. The petition alleges sexual harassment and retaliation. FCHR transmitted the petition to the Division of Administrative Hearings on October 6, 1994. The amended petition for relief, filed on April 10, 1995, and referenced in the order and notice of hearing dated May 16, 1995 deletes any reference to Title VII and recites instead that the claims for relief are based on Section 760.10, Florida Statutes. The amended petition does not claim constructive discharge nor does it mention that Ms. Cline left the company approximately five months earlier. Sexual Harassment Policy and Summary of Findings USBI has, and during the relevant period had a sexual harassment policy which provides: The Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" include a section prohibiting sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature when: submission to such conduct is either an explicit or implicit term or condition of employment, or submission to or rejection of such conduct is used as a basis for an employment decision affecting the person rejecting or submitting the conduct, or such conduct has the purpose or effect of unreasonably interfering with an affected person's work performance or creating an intimidating, hostile, or offensive work environment. Sexual harassment is unacceptable behavior by any USBI employee or outside vendor. Any form of harassment, like any conduct contrary to common decency or morality, cannot and will not be tolerated. The company will take whatever corrective action necessary to prevent or deal with acts of sexual harassment in the work place. (Respondent's exhibit no. 61) The policy provides names and phone numbers for persons to report sexual harassment and states that reports at that point will be confidential. Employees are informed of the policy through annual letters from the company head, through posters on the facility walls and through mandatory workshops for managers and their staff. USBI responded appropriately to Ms. Cline's complaints. Its response as to the photographs was effective; the sexually-themed banter, however, continued. The banter did not constitute sexual harassment of Ms. Cline, nor did it create a sexually hostile work environment. No one at USBI ever made a sexual advance towards Ms. Cline; no one suggested or requested sex from her or asked her for a date. No one touched her inappropriately. The sexual banter was never directed to or about her. The banter overheard by Ms. Cline, and the use of the "f word," were occasional, not daily or even weekly. The banter was not directed solely to, or about women; it was engaged in, and was overheard, by men and women, alike. The work quarters were close; the unit which included Ms. Cline was in a small "modular" building with work stations divided by movable partitions. By necessity, workers moved around the office to use various equipment. Coworkers of Ms. Cline did not find the environment sexually hostile, offensive or intimidating. No one else of the primarily female group complained about a sexually hostile or intimidating work environment. According to both a friend and her psychiatrist, Ms. Cline was more sensitive than most to profanity and off-color language. Without question, Ms. Cline suffered from stress at work. The stress was manifest in the myriad physical symptoms which caused absenteeism and loss of performance. USBI appropriately offered to Ms. Cline accommodations which would have allowed her to continue working at the same job level and salary but outside of the environment she found intolerable. She rejected the offers and voluntarily resigned. The resignation was not urged, directly or indirectly, by the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Ms. Cline's complaint and petitions for relief in this cause. DONE and ENTERED this 25th day of March, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5634 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in paragraph 60. Rejected as unnecessary. Adopted by implication in paragraph 60. Adopted in substance in paragraph 48. Rejected as unnecessary. Adopted in paragraph 50. Adopted in paragraph 52. Adopted in paragraph 53. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Subparagraphs are addressed as follows: Adopted in substance: a (but not the date), b, c, h, i, m, n. Rejected as unnecessary, immaterial or misleading: d, e, f, g, j, k, l. Rejected, as to the "escalation," as unsupported by the greater weight of the evidence; adopted generally in summary in paragraph 17; but some of the specifics alleged were not established (for example, the "sucking" statement). Rejected as a mischaracterization of the incident, although use of the word, "fuck," was proven. 19.-22. Rejected as not credible. 23.-24. Adopted in substance in paragraph 17. 25.-28. Rejected as contrary to the weight of evidence. Adopted in part in paragraphs 39-41, but it was not proven that the stress was the result of a "hostile work environment," within the scope of gender-based discrimination. Rejected as unnecessary. 31.-32. Rejected as contrary to the weight of evidence. 33.-34. Accepted that she complained, but the dates and frequency were not established with competent evidence 35. Conclusion that the steps were "inadequate" is rejected as contrary to the weight of the evidence. 36.-41. Rejected as unnecessary, immaterial, or misleading. 42. Rejected (as to characterization of "retaliation") as contrary to the weight of evidence and the law. 43.-46. Rejected as unnecessary, given the recommended disposition. Respondent's Proposed Findings of Fact. 1.-4. Adopted in substance in paragraphs 48 and 49. 5.-6. Adopted in substance in paragraph 54. 7. Adopted in paragraph 1. 8. Adopted in paragraph 55. 9. Adopted in paragraph 3. 10. Adopted in paragraph 4. 11. Adopted in paragraph 5. 12.-13. Adopted in paragraph 4. 14.-15. Rejected as unnecessary. Adopted in substance in paragraph 34. Adopted in paragraph 6. 18.-21. Adopted in paragraphs 7 and 8. 22. Adopted in paragraph 9. 23. Adopted in substance in paragraph 59. 24. Adopted in paragraph 61. 25. Adopted in paragraph 10. 26. Adopted in paragraph 12. 27.-28. Adopted in substance in paragraphs 11 and 12. 29. Adopted in paragraph 13. 30. Adopted in paragraph 27. 31. Rejected as unnecessary. 32.-35. Adopted in paragraphs 14 and 15. 36.-38. Adopted in paragraph 19. 39.-43. Adopted in paragraphs 20 and 21. 44. Adopted in paragraph 22. 45. Rejected as unnecessary. 46. Adopted in paragraph 23. 47.-48. Rejected as unnecessary. 49. Adopted in substance in paragraph 25. 50. Adopted in paragraph 24. 51. Adopted in paragraph 26. 52. Adopted in paragraph 28. 53. Adopted in paragraph 29. 54. Adopted in paragraph 31. 55. Adopted in paragraph 30. 56. Rejected as unnecessary. 57.-62. Adopted in substance in paragraphs 43 through 46. 63.-64. Adopted in part in paragraph 47; otherwise rejected as unnecessary. 65.-72. Adopted in substance in paragraphs 32 through 38. COPIES FURNISHED: Patricia E. Lowrey, Esquire Mark B. Roberts, Esquire STEEL HECTOR and DAVIS 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Wayne L. Allen, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether the Respondent's real estate license in Florida should be disciplined as a result of his criminal conviction of crimes involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes.
Findings Of Fact At all times material to these proceedings, Respondent Rosenberg has been licensed as a real estate broker in Florida, and has held license number 0308769. The last license issued was as a broker and was sent in care of Monopoly Realty, Inc., 944 Country Club Boulevard, Cape Coral, Florida. On April 7, 1989, the Respondent entered guilty pleas to the eleven criminal charges set forth in an Information filed in Case No. 89-3310-CF10, Brevard County, Florida. Counts I-IV of the Information charged the Respondent with the crimes of unlawful and knowing possession of four different motion pictures containing sexual conduct by children. Counts V-XI of the Information charged the Respondent with possession of seven additional motion pictures or videotapes containing obscene materials. It was alleged that the Respondent intended to sell, show or distribute these videotapes. Upon acceptance of the pleas, the judge found the Respondent guilty of Counts V-VII and withheld adjudication on all other counts. The Respondent was sentenced to two years of community control followed by three years probation on Counts I-IV. In addition, he received six months probation to run concurrently with the first sentence on all other counts. Other conditions of the community control portion of the sentence required the Respondent to pay $774.50 in investigative costs to the Organized Crime Division, continue in sexual therapy, and required that he not accept employment in video stores or any establishment where adult magazines or videos are sold. After his pleas were accepted by the Court, the Respondent notified the Florida Real Estate Commission of the court's judgment and sentence by letter on May 3, 1989. Mitigation In mitigation, the Hearing Officer finds that the Respondent has never had a complaint filed against him during the eleven years he has been licensed and actively engaged in the sale of real estate in Florida. The Respondent realizes that his interest in pornography is prurient, and he is sincerely involved in the sexual therapeutic program. The Respondent has a supportive family which is anxious to assist him in overcoming his problem. The charges filed against the Respondent in the Information were based upon one criminal episode which involved eleven pornographic films or tapes.
Recommendation Based upon the foregoing, and having reviewed the mitigating factors presented by Respondent at hearing, it is recommended: That Respondent David Rosenberg be found guilty of having violated Section 475.25(1)(f), Florida Statutes, as set forth in the Administrative Complaint. That the Respondent's real estate broker's license be suspended for a period of four years in accordance with the guidelines set forth in Rule 21V- 24.001, Florida Administrative Code. This recommendation aligns itself with the sentence of the circuit court judge who has given Respondent the opportunity to be placed in a community control program with probation over a five-year period in order to receive sexual therapy and repay his debt to society for having committed crimes which violate Florida's obscenity laws. As one year of the sentence imposed by the court has passed, the recommended four-year suspension would run concurrently with the remaining term of the Respondent's sentence. RECOMMENDED this 7th day of May, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5858 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2 and #3. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Rejected. Improper legal conclusion and irrelevant. Rejected. Immaterial and Irrelevant. Rejected. Irrelevant. A collateral attack on Respondent's plea is improper as this is not the proper forum for such review. Rejected. Irrelevant. Accept that adjudication was withheld on all but Counts V- VIII in the Information. See HO #3. Accept that Respondent will be receiving therapy. See HO #3. Accept that Respondent has no prior arrests. The state of Respondent's future record once he successfully completes his sentence is irrelevant and is rejected as irrelevant. The assertion that child pornography is a victimless crime is rejected as contrary to fact. Accept subparagraphs 6(a) - (d). See HO #4 and HO #5. Reject subparagraph 6(e). Contrary to fact. See HO #2 and HO #3. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1990 Orlando, Florida 32801 Peter L. Rosenberg Qualified Representative 1224 Southeast 23rd Place Cape Coral, Florida 33990 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 26th day of November, 2007.
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Jonathan W. Whyte, held teaching certificate number 517135 issued by the Department of Education. The certificate covers the area of physical education and is valid through June 30, 1996. When the relevant events herein occurred, respondent was certified as a teacher and was employed in various positions (both instructional and non- instructional) at Terry Parker High School (TPHS) in Jacksonville, Florida. The school is a part of the Duval County School District (District). Respondent was married to and lived with Cathy Whyte until they separated in November 1989. They had two children, S. W., born on November 22, 1985, who is the alleged victim in this case, and C. W., an older brother whose age is unknown. In addition, Cathy had two older boys from a prior marriage. The six lived together in Jacksonville, Florida, where respondent was employed as a teacher and coach at TPHS. Shortly after the separation, or in March 1990, dissolution proceedings were initiated by the wife, and a somewhat acrimonious and lengthy custody battle for the two biological children ensued. A dissolution of the marriage was eventually granted, and Cathy was given primary custody of the two children while respondent received visitation rights during parts of the summer and Christmas holidays. In 1990, or after the two were separated but before the marriage was dissolved, Cathy relocated to Connecticut with her boyfriend and another male friend taking all four children with her. In December 1990, charges that respondent may have sexually abused S. W. were allegedly made by the daughter to the mother who reported these allegations to Connecticut authorities. The charges were subsequently reported to Florida authorities, and after learning of them, the District temporarily removed respondent from the classroom in 1991 and reassigned him with pay to the media center for the remainder of the school year. Because the charges still remained unresolved at the beginning of school year 1992-93, respondent was temporarily reassigned with pay to the transportation center for that school year. By the summer of 1993, respondent had not taught in a classroom for two consecutive years, and this constituted a ground for the District to refuse to renew respondent's annual contract for school year 1993-94. Consequently, he was forced to seek employment in an unrelated field pending the outcome of this complaint. In September 1992, petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint against respondent charging him with sexually abusing his daughter in July 1990. The complaint was later amended to add the charge that he also sexually abused his daughter during Christmas holidays of 1992. The filing of the complaint prompted respondent to request a hearing. The Allegations The origin of the charges The administrative complaint, as amended, alleges that from July 15, 1990, to July 31, 1990, the Respondent committed sexual acts upon his five year old daughter. Such acts included but were not limited to kissing with an open mouth, engaging in oral sex, fondling of genitals, and penile penetration of the vagina. The complaint goes on to allege that on or about December of 1992, when the Respondent's daughter was visiting him for Christmas vacation in Florida, while the Respondent's daughter was at her Grandparent's home, the Respondent again committed sexual acts upon his daughter. Such acts included but were not limited to fondling of genitals, penile penetration of the vagina, and other inappropriate touching. The Respondent thereupon told his daughter, "Don't tell anyone I did this." The veracity of these allegations, which respondent strongly denies, is discussed in greater detail below. In December 1990, or after Cathy had moved to Connecticut and while she and respondent were in the midst of a custody battle, charges that respondent had sexually abused his daughter first arose. These charges were lodged by his estranged wife after she allegedly heard these complaints from her then five year old daughter. The matter was referred to the state police, and the daughter was interviewed on videotape by a female state trooper. This videotape was later furnished to the Florida circuit court having jurisdiction over the dissolution and custody matters. In March 1991, the Department of Health and Rehabilitative Services (HRS) also received the same report that respondent had abused his daughter in July 1990. After an investigation was conducted, the report was classified by HRS as unfounded. In late 1992 or early 1993, the mother again reported to Connecticut authorities that respondent sexually abused his daughter while she visited him during Christmas holidays of 1992. The charges were referred to the Jacksonville sheriff's office in January 1993 and were later incorporated by petitioner into an amended complaint. The validity of the charges In support of the complaint, petitioner has relied upon the testimony of the alleged victim, two psychologists, an HRS investigator, and a sheriff's detective. The mother did not testify. Although the alleged victim made statements concerning the allegations to each of these witnesses, petitioner has conceded that, with one exception, all of these statements are hearsay and can be used only for the purpose of supplementing and explaining other competent evidence, if any. As to the one claimed exception, which involves the statements made by the child during an interview with Dr. D'Amato, a psychologist, the circumstances surrounding the making of the child's statements indicate a lack of reliability, and they are accordingly deemed to be hearsay. The specific reasons relied upon by the undersigned in making this finding are cited below. The validity of the charges turns in large measure on the veracity of the alleged victim's testimony. Bearing on this issue are several considerations. First, the allegations in the amended complaint arose during the course of a protracted child custody battle. Where there is marital conflict, divorce or custody proceedings, false sexual abuse allegations are not uncommon. Indeed, according to the accepted testimony of one expert, Dr. Krop, a higher percentage of false sexual allegations are made by a parent in this type of case. At the same time, there was evidence here of the presence of the parental alienation syndrome. In other words, one parent (the mother) was attempting through negative statements to alienate the children, including S. W., towards respondent, the estranged parent. When such alienation occurs, it tends to cast doubt on the credibility of the complaints of the alleged victim. Further, the evidence showed that during the child's first interview concerning the alleged abuse in late 1990 or early 1991 with a Connecticut state trooper, she was "contaminated" by inappropriate questioning and improper interview techniques. For example, during that interview, the trooper improperly interrogated, rather than questioned, the child. In addition, and contrary to accepted practice, the mother was allowed to remain in the room during the interview and was asked to verify some of the child's responses. Also, the interrogator repeatedly used leading questions and prompted the child with the desired responses. When contamination such as this occurs, any further allegations of abuse must be viewed "suspiciously" and are placed in doubt since the child is vulnerable to figures of authority and may give an answer, whether truthful or not, simply because she believes that the answer given is expected by the interrogator. Moreover, by being "interviewed" in this manner, the child was "conditioned" to give the same responses in subsequent interviews to authority figures. It is also noted that during the child's videotaped deposition in May 1993, which has been received in evidence as petitioner's exhibit 2, her answers lacked sponteneity, and she was repeatedly led by counsel and answered many questions only after being given the suggested answer. At that time, she acknowledged that "someone" had told her that by confirming that abuse had occurred, it would "help" her father. It is noteworthy that during the deposition, while claiming that some abuse occurred, the alleged victim specifically denied the allegations of oral sex, penile penetration and kissing with an open mouth, all being charges in the amended complaint. She also changed her testimony as to the number of times she was abused, and she used and understood the meaning of the words "vagina" and "penis" because of knowledge imparted to her by her mother. It is extremely unusual for a child of that age to use and understand those anatomical words. Collectively, these considerations cast considerable doubt on the credibility of the alleged victim's testimony and lead the undersigned to find that it should not be accepted. Given this finding, the hearsay testimony (consisting of statements made by the child during various interviews) offered by the HRS investigator, sheriff's detective and two psychologists does not supplement or explain any competent evidence of record and has been disregarded. Finally, the undersigned has also considered other pertinent testimony that supports the above findings, and that accepted testimony has been set forth below. The charge that respondent sexually abused his daughter during Christmas holidays of 1992 does not comport with other competent evidence. Due to the earlier allegations of abuse (that allegedly occurred in July 1990) being leveled against respondent, he agreed to certain restrictions during his visitation periods with the children. Under the terms of that agreement, when the two children visited him in Florida, they were to stay at his parents' home in Neptune Beach, and S. W. was to sleep in her grandparents' bedroom. Also, respondent agreed to never be alone with the children and to have one or both of the grandparents with them at all times. During her visit at Christmas 1992, S. W. was never alone with her father or out of sight of one of the grandparents except on one occasion when the girl accompanied her father out of the home during the day with another adult but not the grandparents. This was confirmed by uncontroverted testimony. During that same period of time, respondent slept on a couch at his parents' home, and his two children shared a bedroom directly across from his parents' bedroom. As to the alleged abuse in July 1990, the only time that the child was in Jacksonville without her brothers or mother being present was for one three day period, a Saturday afternoon to the following Tuesday. During that time, S. W. stayed at her grandparents' home while respondent spent the nights at his apartment. Respondent was working from five until midnight at a second job on Monday through Saturdays, by which time S. W. had already gone to bed, and he was attending classes at the University of Florida each work day until mid-afternoon when he returned to Jacksonville to go to work at his second job. On the only days he saw his daughter, a Saturday afternoon and all day Sunday, his parents were constantly present. Three psychologists testified in this cause. The first, Dr. Krop, a witness for respondent, became involved with evaluating respondent's family in October 1990 after being appointed by a circuit judge to evaluate the family and make a recommendation for the childrens' primary residence and visitation arrangements. The second, Dr. Kaplan, was appointed by the same circuit judge in July 1992 to offer his recommendation as to visitation arrangements for S. W. Both psychologists interviewed the alleged victim and her family, including respondent, and became aware of the sexual abuse allegations during the course of their interviews. Doctor Kaplan, who testified on behalf of petitioner, had extremely limited experience in the area of child sexual abuse, and before this case, had never been proffered as an expert in that area. Although he was accepted as an expert in psychology, he was not accepted as an expert in child sexual abuse, and very little weight, if any, has been accorded his opinions on this subject. The third psychologist, Dr. D'Amato, a Jacksonville psychologist, and also a witness for petitioner, first interviewed the child in April 1991 after the case was referred to him by the Jacksonville state attorney, presumably in response to the allegations referred to that office by Connecticut authorities. At the request of the mother's divorce attorney, and for the purpose of "monitoring" the child on the mother's behalf, Dr. D'Amato continued to see the child on four occasions in July and August 1992 for either fifteen or thirty minute sessions when she was visiting Florida. During those sessions, the psychologist found the child to be free of anxiety, comfortable with her father, and "enjoying herself." The testimony of Dr. Harry Krop, an expert in the field of child sexual abuse and who testified on behalf of respondent, has been accepted as being the most credible and persuasive of the three psychologists who testified. Based on his interviews with the child and family, and review of videotapes, depositions and other pertinent medical records, Dr. Krop concluded that the alleged sexual abuse of S. W. cannot be validated. The undersigned concurs with this finding. In summary, for the reasons cited above, it is found that respondent did not sexually abuse his daughter as alleged in the amended complaint. Therefore, the charges must fail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the amended administrative complaint with prejudice. DONE AND ENTERED this 12th day of November, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6173 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5-9. Rejected as being contrary to the more credible and persuasive evidence or hearsay which does not supplement or explain other competent, accepted evidence. 10. Partially accepted in findings of fact 10 and 12. The remainder has been rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 11-13. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 16-20. Rejected as being contrary to the more credible and persuasive evidence. 21. Partially accepted in finding of fact 12. 22-24. Rejected as being contrary to the more credible and persuasive evidence. 25-26. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 27-30. Rejected as being contrary to the more credible and persuasive evidence. 31. Rejected as being unnecessary. 32-33. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 34. Partially accepted in finding of fact 12. 35-37. Rejected as being unnecessary. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. Rejected as being unnecessary or contrary to the more credible and persuasive evidence. 40-41. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 Wm. Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry L. Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent discriminated against Petitioner on the basis of her sex, by sexual harassment, in violation of Subsection 760.10(1) and/or (2), Florida Statutes (2008).1
Findings Of Fact Petitioner is an adult female, and as such, is a member of a protected class. Respondent is an agency of the State of Florida charged with the duty to protect the public through the incarceration and supervision of offenders and to rehabilitate offenders, pursuant to Section 20.315, Florida Statutes. In August 2007, Petitioner applied for a job as a correctional officer with the Florida Department of Corrections through the Charlotte Correctional Institution (the Facility) located in Punta Gorda, Florida. Petitioner's contact person during the application process was Recruitment Sergeant Dennis Britton. Petitioner was initially interviewed by Sergeant Britton. At the conclusion of the interview, Petitioner was about to leave when Britton grabbed her by the shoulder, pulled her to him and bent down to her face in a kissing position. Petitioner put her hands on his chest, pushed him away and left. On other occasions during the interview process, specifically on August 21, 2007, and October 1, 2007, Briton coerced Petitioner to come into his office at the Facility and proceeded to physically and sexually assault Petitioner. Britton would grope, grab, and forcibly kiss Petitioner against her will. Throughout the recruitment process, both Britton and Petitioner exchanged e-mails of a professional and personal nature. On or about September 10, 2007, Warden Adro Johnson approved Petitioner for employment with the DOC. Warden Johnson, not Sergeant Britton, made the hiring decisions at Charlotte Correctional Institution. November 30, 2007, was Petitioner's first day of employment at the Facility. On November 30, 2007, Petitioner was again compelled to appear at Britton's office where he proceeded to physically and sexually assault Petitioner. Britton groped, grabbed, and forcibly kissed Petitioner against her will. On several other occasions between November 2007 and March 2008, Britton would summon Petitioner to his office and proceed to make sexual advances on her against her will. In December 2007, Petitioner completed New Employee Orientation. A component of the New Employee Orientation is training with regard to Respondent's Equal Employment Opportunity Policy and, specifically, the Sexual Harassment policy. Petitioner completed the computer-assisted training on sexual harassment in December 2007. In addition, new employees are routinely provided with hard-copy pamphlets on sexual harassment. Respondent's sexual harassment policy is also posted at various locations at Charlotte Correctional Institution. At no time during this period did Petitioner complain, verbally or in writing, to her supervisor or anyone else at the Facility. On March 14, 2008, Petitioner started the correctional officer training academy at the Facility. On March 17, 2008, Petitioner filled out an incident report stating she had been sexually harassed by Sergeant Dennis Britton. The report was sent up the chain of command, and Warden Johnson immediately removed Sergeant Britton from his position as the recruitment sergeant and reassigned him to a position on the compound. An investigation into the allegations was started on March 19, 2008, by Respondent's Office of the Inspector General. The investigation was led by Inspector Daryl J. McCasland of the Office of the Inspector General. The findings of the investigation were that Britton violated Section 784.03, Florida Statutes, and Florida Administrative Code Rule 33-208.033(22) (Conduct Unbecoming a Public Employee). On April 9, 2008, while the investigation was still pending, Sergeant Britton submitted his resignation, effective May 1, 2008. Britton admitted to the accusations of sexual battery against Petitioner to the warden of the Facility. Britton was removed from the Facility on or about April 9, 2008. Petitioner testified that on at least five separate occasions between April 23, 2008, and May 23, 2008, Respondent allowed Britton to return into the Facility and granted Britton access into the restricted-access inner-compound where Petitioner worked so that he was able to continue to harass Petitioner. However, this testimony was uncorroborated and deemed unreliable. At no time during Petitioner's employment did Sergeant Britton supervise Petitioner or work directly with her. He did not discipline her, set her schedule, or assign her duties. From November 30, 2007, until March 14, 2008, Petitioner worked inside the secure perimeter, while Britton worked as the recruitment sergeant outside the secure perimeter in the administration building at the Facility. Petitioner was in the academy beginning March 14, 2008, and Sergeant Britton had no supervisory or training responsibilities over officers in the training academy. Petitioner was continually in the correctional officer academy from the time she filed her initial complaint on March 17, 2008, until Britton's resignation became effective on May 1, 2008. While in the academy, Petitioner was continually with other trainees and other instructors. Sergeant Britton never made any additional sexual advances or had any conversation with Petitioner following her complaint on March 17, 2008. Inspector Daryl McCasland substantiated the complaint against Sergeant Britton for battery, conduct unbecoming a public employee, and failure to follow written procedures. The inspector forwarded his results to the Office of the State Attorney in Punta Gorda which declined to prosecute. Respondent acted in a prompt and reasonable manner to stop the harassment and address it once it was known. Petitioner failed to exercise reasonable care in the reporting of the harassment. Petitioner presented no evidence on the issue of retaliation. Petitioner presented no evidence of quantifiable damages. Her testimony was that she felt harassed and physically upset by the conduct of Britton and that she felt harassed and physically upset by her fellow officers after her complaint become known, but no proof of an adverse employment action was presented. Given the lack of evidence to support Petitioner's allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issued a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue The issue is whether Petitioner, Juan F. Ramos (Petitioner), is entitled to compensation pursuant to sections 961.01 through 961.07, Florida Statutes (2013). Unless otherwise stated, all references to the law will be to Florida Statutes (2013).
Findings Of Fact Petitioner immigrated to the United States from Cuba in 1980. In April of 1982, Petitioner resided in Cocoa, Florida, within walking distance of his employer, Armor Flite Southeast. Mary Sue Cobb, the victim of a murder, also lived in the area near Petitioner’s home and Armor Flite Southeast. Petitioner and Mrs. Cobb knew one another. Prior to April 23, 1982, Petitioner had placed an Amway order with the victim and her husband. The Cobbs sold Amway products and solicited Petitioner to purchase items and/or become a salesperson for the company. Prior to April 23, 1982, Petitioner had been at the Cobb residence five or six times. Petitioner had been inside the Cobb home. For the two days prior to April 23, 1982, Petitioner had been sick, unable to go to work, and had not been at the Armor Flite Southeast property. At all times material to this case, Manuel Ruiz was the general manager at Armor Flite Southeast. Mr. Ruiz served as Petitioner’s supervisor. From the Armor Flite Southeast property, it was possible to view the Cobb residence. On the morning of April 23, 1982, Petitioner told his wife he was going to work. Petitioner did not, however, enter the Armor Flite property at the beginning of the work day when Mr. Ruiz opened the shop at approximately 6:45 a.m. Moreover, Mr. Ruiz did not see Petitioner at the Armor Flite Southeast property until he came to pick up his check at 11:30 a.m. or noon on April 23, 1982. Instead of a paycheck, Mr. Ruiz gave Petitioner a letter on April 23, 1982, that notified him he was being laid off effective April 21, 1982. Armor Flite Southeast was in Chapter 11 and the trustee for the company gave Mr. Ruiz a list of four persons who were to be laid off. Petitioner was among those four. Petitioner was invited to attend a meeting with the trustee on April 23, 1982, at approximately 3:30 p.m. In theory, the employees were being laid off due to lack of work, but they could be re-hired if the work volume improved. Mr. Ruiz explained the foregoing to Petitioner. Mr. Ruiz and Petitioner had no difficulty communicating as both men were fluent in Spanish. At some time after the meeting with Mr. Ruiz, Petitioner returned home and was there when family members came over later in the afternoon. During the morning of April 23, 1982, Mrs. Cobb was murdered. Following an investigation of the crime, Petitioner was charged with the first degree murder of Mrs. Cobb, was convicted, and was incarcerated. Subsequent to the conviction and sentencing, Petitioner’s conviction was overturned and his case was remanded for a new trial. The second trial resulted in an acquittal on April 24, 1987. On June 28, 2010, Petitioner filed a petition for compensation and alleged he is entitled to relief pursuant to chapter 961, Florida Statutes. An Amended Petition was filed on October 20, 2010, and resulted in an order entered May 13, 2013, by Circuit Court Judge Charles Roberts that provided as follows: The Defendant’s [Petitioner herein] Amended Petition to Victims of Wrongful Incarceration Compensation Act shall be transferred to the Division of Administrative Hearings for findings of fact and a recommended determination of whether the Defendant has established that he is a wrongfully incarcerated person who is eligible for compensation.
