The Issue Whether Respondent was the subject of an unlawful discrimination action as defined in Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. She was certified as a corrections officer in March 1991. In November 1995, Petitioner was employed by Respondent, Department of Corrections, at Taylor Corrections Institution in Perry, Florida, as a correctional officer with the rank of sergeant. Prior to her employment at Taylor Corrections Institution she had been a corrections officer at a correctional facility in Jefferson County. Petitioner did not have employment problems while working at the Jefferson County facility. Petitioner's first year at the Taylor County correctional facility was "O.K." However, Petitioner was not well liked among her fellow officers. Between June through October 1996, Petitioner was the subject of several complaints from her fellow officers. These separate complaints were: On June 12 or 13, 1996, King cursed at an entire dormitory of inmates. On June 19 King was assigned to assist another officer in conducting a recount of inmates. She failed to assist the officer in conducting the recount. On July 24, 1996, King was assigned to escort the swill truck (a food truck) by the control room sergeant. She refused to accept the assignment and cursed at the control room sergeant. A few days later, she confronted another officer in a hostile and threatening manner because the officer had submitted an incident report concerning King's conduct in cursing at the control room sergeant. On October 9, another sergeant asked King to sign a typed incident report regarding King's loss of her state-issued handcuff case. King initially refused to sign the report. Shortly thereafter, she tore up the report in the presence of an inmate because she was displeased with certain comments in the report. On October 28, King cursed at a coworker. Id. PERC Final Order dated October 8, 1997. In October 1996, Petitioner filed several internal discrimination complaints against the agency generally opposing unfair employment practices. The exact nature of these complaints was not established by the evidence. On December 13, 1996, Petitioner received a notice of disciplinary charges being brought against her based on the earlier-filed employee complaints. The notice lists the charges as follows: Multiple charges are being brought against you stemming from several investigations. In the first case, you are being charged with malicious use of profane or abusive language toward inmates, visitors, or persons under supervision, use of verbal abuse of an inmate, conduct unbecoming a public employee, and willful violation of state statute, rule, directive, or policy statement. Specifically on June 25, 1996, an anonymous request was received by the Superintendent's Office alleging that you cursed the entire dormitory of inmates on June 13, 1996. It was also alleged that you had been gambling and would not pay off your debts. This prompted an investigation into these allegations. Several witnesses including an inmate verified the above allegations. The basis for these charges is contained in the Institutional Investigation Report #96-044, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33- 4.001(4)(a), 33-4.002(4)(9), and 33- 4.003(6)(20)(22)(24), F.A.C., copies attached and made a part hereof. In the second case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming a public employee, unwilling to follow lawful orders or perform officially designated duties, interference with an employee, failure to follow oral or written instructions, witness tampering during an investigation, and retaliation. Specifically on July 24, 1996, Sergeant J. Pickles reported that while assigned as Control Room Supervisor, he advised you via radio that he needed an escort for the swill truck. You responded by telephone and stated "Why are you calling me? I'm not escorting that fucking swill truck. I'm busy in the Caustic Room. Get someone else to do that shit." Officer V. Aman submitted an incident report verifying the telephone conversation since it was the dormitory in which she was assigned to that you came to use the telephone. On August 1, 1996, Officer Aman also stated that you made threats toward her in retaliation for submitting her report, in which you admitted to confronting this officer. The basis for these charges is contained in Institutional Investigation Report #96-052, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33- 4.002(4)(11)(17), 33-4.003(22)(24)(32), F.A.C., and Sections 914.22, 914.23, Florida Statutes, copies attached and made a part hereof. In the third case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming, unwillingness to perform officially designated duties, substandard quality of work, negligence, and failure to follow oral or written instructions. Specifically, on June 19, 1996, a recount was ordered and you were informed by the control room that your dormitory officer needed assistance in the recount. The officer stated that he waited approximately ten (10) minutes for your arrival and proceeded to recount without assistance. He then submitted an report as to the incident. You then submitted an incident report concurring with the officer with the exception that you observed the recount from the Officer's Station. The basis for these charges can be found more specifically contained in the Institutional Investigation #96-058, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(4)(11) and 33-4.003(10)(13)(22)(24)(32), F.A.C., Institutional Post Orders 17.02(j), 06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4), and Institutional Operating Procedures 3.03.3(C)(5)(11e), copies attached and made a part hereof. In the fourth case, you are being charged with conduct unbecoming a public employee, willful violation of state statute, rule, directive, or policy statement, and destruction or abuse of DC property or equipment. Specifically on October 9, 1996, you submitted an Incident Report for losing your state issued handcuff case. On October 13, 1996, after being typed, Sergeant Chad Dees gave the Incident Report to you to be signed. Upon receiving the report, you allegedly stated "I will show you what I will do with this," then tore the report up and walked away. You admitted to tearing up the report because of the comments written by Captain Simons, but denied making the comment alleged by Sergeant Dees. Officer Tammy Alvarez witnessed you tear up the report, but denied hearing any statements made by you. The basis for these charges is contained in the Investigative Report #96-23008, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(25), and 33- 4.003(22)(24)(27), F.A.C., copies attached and made a part hereof. All of these charges pre-date Petitioner's internal complaints. On January 23, 1997, a predetermination conference was held on the above charges. The evidence did not demonstrate that the employee charges or the disciplinary action were retaliatory in nature or based in discrimination. Moreover, the factual basis of the charges was upheld in the PERC Final Order. As referenced in the letter, Petitioner was the subject of several investigations conducted by the Inspector General's Office of the Department of Corrections. The role of the Inspector General was to gather the facts and evidence involved in a complaint. The Inspector General does not make any recommendations as to discipline or determine if a rule or statutory violation has occurred. Raleigh Sistruck, an Inspector with the Inspector General's office conducted some of the investigations of Petitioner. He did not personally know Petitioner. There was no evidence that he treated Petitioner differently than he did any other investigatory subject. Nor did Inspector Sistruck engage in any conspiracy or act alone to fabricate evidence against Petitioner or elicit false testimony from witnesses. Indeed, the only evidence presented in this case, is that Inspector Sistrunk followed standard investigatory procedures in investigating the complaints against Petitioner. In January, 1998, Petitioner was accused of soliciting an inmate and another correctional officer to cause harm to another inmate at the facility. The Inspector General's office investigated that accusation. Again there was no evidence that the inspectors engaged in any conspiracy to falsify or fabricate evidence. Normal investigatory procedures were followed. Based on the various complaints and the findings set forth in various Inspector General investigations, Mr. Drake decided to terminate Petitioner. Petitioner received a letter of extraordinary dismissal on February 7, 1997. The dismissal letter dismisses Petitioner for: This dismissal is the result of you being charged with willfully engaging in conduct which violates state statutes and Agency rules; conduct unbecoming a public employee; failure to conduct yourself in a manner consistent with the welfare of inmates; soliciting, bartering, dealing, trading with or accepting a gift or other compensation from an inmate(s); willfully treating an inmate in a cruel or inhuman manner; threatening or interfering with other employees while on duty; failure to maintain a professional relationship with inmates; giving false testimony; and interfering with an inmate. Specifically, on or about January 10, 1997, you solicited the assistance of inmate Tony Jackson, DC#724515 and Correctional Officer Jacqualyn Jackson-Beasley to cause harm to inmate Mike Doty, DC#725094. As a result of your actions and requests, Officer Jackson- Beasley, inmate Jackson, inmate Mark Smith, DC#724887, inmate Alberto Matta, DC#191523 and inmate Thomas Carrillo, DC#195319, conspired and did plant a homemade knife, with an approximate 14 inch blade, in inmate Doty's cell in an effort to set him up. When inmates Carrillo and Matta entered F- Dorm with the knife, Officer Jackson-Beasley signaled then with her fingers indicating inmate Doty's cell number. She also acted as a cover while the inmates planted the knife in inmate Doty's cell. Once the knife was planted, you and Officer Jackson-Beasley had a telephone discussion during which you instructed her to call Sergeant Gerald Miller and have inmate Doty's cell searched. Once Officer Jackson-Beasley reported the information to Sergeant Miller, a search of Doty's cell was made and the knife was recovered. Sergeant Miller than notified Captain William F. Buchtmann. After questioning by Captain Buchtmann, inmates Carrillo and Mata, both admitted their participation in placing the knife in inmate Doty's pillow and stated they were contacted by inmates Jackson and Smith for assistance. Carrillo was told by Jackson and Smith that it was you who wanted inmate Doty taken care of and they gave inmate Carrillo the impression that if he took care of inmate Doty, he would be paid $50.00 and be given an undisclosed amount of marijuana for his assistance. The following day, January 11, 1997, you stated to inmate Jackson words to the effect, "They locked up inmate Smith" and "That motherfucker talked" (referring to inmate Matta) You also stated to inmate Jackson words to the effect, "It's not cool for me to be seen talking to you." On or about January 17, 1997, Officer Beverly Pratt overheard you state to an unidentified inmate, words to the effect, "Something needs to be done with Doty." On that same date, inmate Willie Jackson, DC#041463, overheard you state to an unidentified inmate, words to the effect, "I am going to get Officer Jackson-Beasley and Sergeant Miller." When questioned under oath, on January 24, 1997, you gave false testimony when you denied all allegations. Additionally, the letter dismisses Petitioner for the earlier disciplinary charges discussed at the predetermination conference in December. Mr. Drake, Superintendent of Taylor Correctional Institute at the time, testified that Petitioner's termination was based on his belief that she had in fact committed the aforementioned rule and statutory violations. He stated that the termination was not based on Petitioner's race or sex or any other of her characteristics; rather, the termination was based on rule and statute violations. There was no evidence which demonstrated Mr. Drake engaged in any conspiracy to concoct evidence against Petitioner or to falsely accuse her. Angela Ratliff, Personnel Supervisor at the time, testified that she did not have any conversation with Petitioner wherein she told her that the Department, her supervisors or coworkers were "out to get her" or words to similar effect. Additionally, Ms. Ratliff does not recall having any conversations with prospective employers for Petitioner. The Respondent's policy is to recite to a prospective employer information contained in the employee's personnel file. The Department does not offer opinions or recommendations about an employee. Moreover, most of the information in the personnel file is considered a public record and must be released to any person or entity requesting the information. In any event, other than broad general statements about seeking employment and what she was told by others who did not testify at the hearing, there was no evidence regarding any specific prospective employer or the information, if any, the prospective employer received from the Department. There is no doubt that Petitioner feels very strongly she was discriminated against. The problem with Petitioner's case is a total lack of evidence to support her allegations. Throughout the hearing she made allegations of discrimination. However, no evidence apart from her allegations of which she had no personal knowledge, was offered. For instance, the alleged paper trail created against her or documents she claimed were changed were not introduced into evidence. No witness was called who wrote or filed such document or statement was called to testify about any such document or statement or any alleged change made to the document or statement. The paper noises or pauses of tape-recorded interviews of witnesses taken during the Inspector General's investigation did not support Petitioner's claim that the witnesses were prompted or told what to say. Such noises or pauses sounded exactly like pages being turned in a notebook when one page is full and a new page is needed to continue taking notes. The pauses sounded like a note taker pausing the witnesses' statement in order to catch up the notes to the witnesses' statement. Given these critical lapses in evidence and the earlier PERC Final Order, the Petition for Relief should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2001. COPIES FURNISHED: Anita King 108 Alice Street Perry, Florida 32347 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.
Findings Of Fact Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett, acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 11th day of October, 2001. COPIES FURNISHED: Joann Annichianrico Tandem Healthcare, Inc. Cherrington Corporate Center 200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108 Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344 James Garrity, Esquire McConnaughay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street Post Office Drawer 229 Tallahassee, Florida 32302-0229 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent is a healthcare facility that provides in- patient nursing care to patients after their surgery. As a healthcare facility, Respondent employs an ethnically diverse staff of nurses, including several black nurses. Petitioner is a black female. As such, Petitioner is a protected person under chapter 760, Florida Statutes. Additionally, Petitioner is a Licensed Practical Nurse (LPN). She received her nursing license in 2002 and has worked in the nursing field since that time. Currently, she is completing her education to become a Registered Nurse. In March 2011, Petitioner was employed by Respondent as an LPN on its skilled medical surgical unit in Tallahassee, Florida. Petitioner was supervised by the Director of Nursing (DON), Michelle, who was, in turn, supervised by Heritage's administrator, Brenda. Both the DON and administrator are white. An important part of Respondent's service is the administration of prescribed medications to its patients in accordance with the medication's prescribed dosage and schedule. As an LPN at Heritage, Petitioner was responsible for the proper administration of medications to patients under her care. At some point, two patients accused Petitioner of giving them their medications earlier than they were supposed to receive them. Although the evidence is unclear, these accusations may have been reported to the administration of Heritage by another nurse who worked the same unit as Petitioner and who Petitioner believed was jealous of her because the patients preferred Petitioner's care to that of the other nurse. Additionally, Petitioner testified that one of the patients told her that she was bribed with a package of cigarettes by the other nurse to make the allegations. However, neither of these patients testified at the hearing. As a consequence, such patient statements constitute uncorroborated hearsay and cannot be considered in this proceeding. Petitioner denies that she ever gave these two patients medication earlier than the prescribed time. Sometime around April 1, 2011, Petitioner was called into a meeting with the administrator and the DON for a "number 2 write-up." There was no evidence that demonstrated the nature of such a disciplinary action or the action that would be taken for such a write-up. The write-up was based on the allegations of the two patients referenced above. However, there was no evidence that Respondent did not investigate or follow its policy on employee discipline. Indeed there was no evidence regarding any of Respondent's policies. Likewise, there was no evidence that other similarly-situated, non-protected employees had received less discipline for similarly alleged infractions. Petitioner tried to explain what the patient had told her about being bribed and making her allegation up. Petitioner also asked the administrator to explain what a "number 2 write- up" was since she did not know, and did not know at the hearing, what such a write-up was. The administrator said she did not have to explain anything, slammed her hand down on her desk, and loudly said "you people make me sick." The administrator also referenced something about lying and trying to cover things up instead of admitting mistakes. There was no substantive evidence that the administrator’s very subjective statement was a reference to Petitioner's race or was intended as a racial epithet. Indeed, viewed objectively, the statement appears to be, at worst, abusive or rude. Ultimately, there was insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but an administrator venting her exasperation at staff. Without more, such language is not the sort of language that anti-discrimination laws are designed to reach. Petitioner was told to sign the write-up or be terminated. She was understandably offended by the administrator's behavior, refused to sign "something that was untrue,” wished the administrator "Jehovah's blessing" and left. Petitioner never returned to the facility and her paycheck was mailed to her. However, as indicated, the evidence was insufficient to demonstrate that Petitioner was the victim of racial discrimination. The Petition for Relief should, therefore, be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of March, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2012. COPIES FURNISHED: Kareen Anita Gantt 1340 Mount Hosea Church Road Quincy, Florida 32352 Michael McKelvaine Heritage Health Care 1815 Ginger Drive Tallahassee, Florida 32308 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent, Arthritis Medical Center, Inc. (AMC), operated a facility at 901 Southeast 17th Street, Fort Lauderdale, Florida. According to its business card, AMC provides a "Hormone Balance Treatment" to patients suffering from arthritis and uses a "medication" that "combines three separate hormones - glucocorticoid and the male and female sex hormones." The card represents that AMC collaborates with a "medical staff" and that its registered nurse administrator was one Donna Pinorsky. 2/ The card reflects also that AMC has a facility at 2025 Broadway, #19D, New York City. The parties have stipulated that respondent holds no licenses or permits from any state regulatory agency. Further, it has no pending application for any permit. Petitioner, Department of Health and Rehabilitative Services (HRS), is charged with the responsibility of protecting the public health regarding commerce of drugs, devices and cosmetics. Through its pharmacy services program, HRS issues permits to those persons or establishments, other than pharmacies, who provide or sell legend drugs, devices or cosmetics to the public. Also, the agency inspects both permitted and unpermitted facilities that hold drugs, devices or cosmetics to ensure that adulterated, misbranded or unsanitary drugs are not dispensed to the public. To this end, HRS employs licensed pharmacists who make random, unannounced inspections of such facilities. This case arises out of two unsuccessful efforts by HRS inspectors to inspect respondent's facility. The inspections were prompted by HRS' receipt of a letter from the Department of Professional Regulation. The contents of the letter were not disclosed. On the afternoon of January 16, 1987, HRS inspectors Jones, Loudis and White, all licensed pharmacists, visited AMC's facility in Fort Lauderdale for the purpose of inspecting any legend drugs, devices or cosmetics that might be on the premises. They were met by Pinorsky, the facility's administrator. After identifying themselves, Pinorsky picked up a hand-held tape recorder and began taping the conversation. Pinorsky first acknowledged that a "Doctor Kline," whose sign was on the outside of the building, had offices at the facility but was not present. She also gave the inspectors an AMC business card which contained the information set forth in finding of fact 1. When the inspectors asked if any hormones were kept on the premises, Pinorsky responded by asking if the inspectors had a subpoena. After being told there was none, she read the inspectors the following statement: On advice of counsel, under the United States Supreme (Court) decision See's vs City of Seattle, Washington, I must decline to allow a search without a search warrant signed by a Judicial officer. And, if such warrant has been issued on advice of counsel I decline to consent to a search until a Court has ruled on a motion to quash under the Fourth & Fourteenth Amendments to the United States Constitution. My local attorney is Larry Altman Post Office Box 402404 Miami Beach, FL 33140 My general counsel is John Burgess 2000 Powell Street Suite 1680 Emoryville, CA 94608 The inspection ended at that point. Around 4:15 p.m. on March 13, 1987 Jones and Loudis returned to AMC's place of business for the purpose of conducting an inspection. They were met by one Kathy Bentley, a secretary, who was told the purpose of the visit. Bentley would not allow the inspection to be made because the "nurse" was not present. Pinorsky then entered the room carrying a "toddler." After putting the child down, Pinorsky immediately set up a tape recorder and began recording the conversation. After identifying themselves, the inspectors requested they be permitted to inspect the facility to ensure compliance with Chapter 499, Florida Statutes. Pinorsky denied their request saying there was ongoing "litigation" over their right to inspect the facility. The inspection ended at that point. Based upon the two unsuccessful efforts to inspect AMC's facility, an administrative complaint was issued by HRS in January, 1988. The complaint is the second administrative action taken against respondent. The first culminated in a Final Order issued on October 22, 1986 imposing a $500 fine on respondent for refusing to allow inspectors to inspect its facility on April 30, 1986. The inspectors had no search warrants to inspect AMC's facility nor had there been any finding of probable cause by a judge or magistrate that a statutory violation may have taken place on AMC's premises. Also, the inspectors did not know the precise nature of respondent's business or whether any drugs were actually kept on the premises. Indeed, Pinorsky never admitted that any were kept at the facility. The inspectors estimated that approximately forty percent of all inspections are on nonpermitted facilities. The inspections are made on a random basis or after the receipt of information from other agencies suggesting that one be made. In 1986-87, HRS inspected more than 350 health maintenance organizations, doctor's offices and medical centers as well as other establishments that hold drugs, devices and cosmetics. The basis for and criteria used in such inspections are set forth in a written HRS "operational guide." This document is not of record. Based upon (a) the representations in AMC's business card that it "treats" arthritis patients and that a "medication" is given to them, (b) the use of the term "medical center" in respondent's business name, and (c) the fact that a physician has offices at AMC's facility, it may be logically inferred that AMC is an establishment that holds or maintains drugs on its premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 499.005(6), Florida Statutes (1987), and Rule 10D-45.0545, Florida Administrative Code (1987), on two occasions and that it pay $5,000 for each violation, or a total of $10,000, said fine to be paid within 30 days from date of the Final Order rendered in this matter. DONE AND ORDERED this 30th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of August, 1988.
The Issue The issue is whether Respondent knowingly obtained or used, or endeavored to obtain or use, the property of another valued at $300 or more with the intent to temporarily or permanently deprive the owner of the right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the demeanor of the witnesses while testifying and other substantive and material evidence of record, the following findings of fact are made: At all times material to this cause, Respondent was a certified Correctional Officer, having been certified on or about April 2, 1991, and issued Correctional Officer Certification No. 92406. On October 8, 2000, Respondent, in the company of two other persons, Steven Smith and Henry Fox, went to a business named "Four Star Refinish" located at 898 County Road 621, Lake Placid, Florida. David Trobaugh is the owner of Four Star Refinish and the compressor at issue in this proceeding. The building housing Four Star Refinish had been largely destroyed by fire before October 8, 2000, and the compressor, valued at more than $300, was located outside the building, undamaged. On October 8, 2000, at the business site of Four Star Refinish, Respondent, Steven Smith, and Henry Fox, agreed to take the compressor and together removed the compressor from the premises and transported it to the residence of Steven Smith. On October 12, 2000, Respondent gave a statement to Robert Neale, Highlands County Sheriff's Department, admitting that he, Steven Smith, and Henry Fox loaded the compressor onto a trailer and together transported it to Steven Smith's residence. Respondent, after his admission, assisted Deputy Neale in recovering the compressor by contacting Steven Smith by telephone, who then provided the location of the compressor. At the location provided by Steven Smith, the compressor was located and recovered by Deputy Neale, identified by the owner, David Trobaugh, and returned to him. Respondent, with knowledge of the unlawful taking of the compressor, with knowledge of the parties who unlawfully removed the compressor, and with knowledge of the compressor's whereabouts, concealed his participation in the aiding and abetting in the commission of a felony by Steven Smith and Henry Fox, when initially approached by law enforcement. As a direct result of the foregone and on April 1, 2001, in the case of State v. Jerry E. Lambert, the State Attorney entered a nolle prosequi, in Highlands County Circuit Court Case No. CF00-00685A-XX, under which Respondent was charged with one count of Grand Theft in Excess of $300, with the stated ground for the nolle prosequi listed as "Case Referred to CDS (Citizen Dispute Settlement). An Agreement was reached and restitution and fees paid." Petitioner has proven by clear and convincing evidence that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner. Respondent's admitted participation in the commission of a felony offense evidenced his intentional failure to maintain good moral character and proves his failure to maintain qualifications required of a certified correctional officer. Respondent offered no mitigating evidence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's Correctional Officer Certification No. 92406. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2003. COPIES FURNISHED: Jerry E. Lambert 126 East Royal Palm Avenue Lake Placid, Florida 33852 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, 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 was discriminated against based on retaliation for participation in a protected activity in violation of Chapter 760.10(7), Florida Statutes.
Findings Of Fact Petitioner (Holden) is an African-American female. At all times relevant to this petition, Holden was employed in a probationary status by the Florida Department of Corrections at Apalachee Correctional Institution (ACI) as a Correctional Officer. Probationary officers are not entitled to progressive discipline, but can be terminated for any reason. At the hearing, Holden withdrew her claims that the Department had discriminated against her based on her race and sex. On or about July 22, 2001, Captain Tullis Scipper responded to a call from the Medical Unit at ACI. Upon his arrival, he observed Officer Holden in front of the Suicide Watch Isolation Cell. She was cussing at the inmate with whom she had a previous confrontation. Scipper explained to her that she was not to argue or verbally abuse the inmate and that she should stay away from the cell. On at least one other occasion that night, Captain Scipper responded to the Medical Unit and observed similar actions by Holden. The next day, Captain Scipper received a call from Warden Adro Johnson, who inquired as to what had happened in the Medical Unit the night before. Warden Johnson had received a complaint from Nurse Carla Weeks that Officer Holden had been cussing the inmates and he was checking into the complaint. Warden Johnson asked Captain Scipper to bring Officer Holden to his office. The purpose of the meeting was not to ascertain whether Officer Holden had been cussing at inmates. The Warden had two eye-witness, staff accounts of her behavior. When confronted, she advised Warden Johnson that she had become angry and had cussed the inmate. Warden Johnson counseled Holden about her behavior. Warden Johnson testified that he felt that Holden was unreceptive to his counseling and that she was argumentative. He believed that she was not displaying the attitude that a good officer displays when he/she is being counseled by a warden. Holden also was upset and crying, and, as a result, Warden Johnson informed her that she needed to adjust her attitude and come back to see him the next day. Warden Johnson testified that he had not made up his mind as to what action he would take against Holden for her actions with the inmate. After the meeting with Warden Johnson, Captain Scipper observed Officers Holden and Shiver arguing with each other. Holden testified that she had asked Shiver about why her tour was changed, and this led to the incident observed by Scipper. In Scipper’s opinion, Holden was the “aggressor” because she continued to advance on Shiver, even though Shiver had his hands in the air and was stating words to the effect that he did not have anything to do with whatever they were arguing about. Knowing that Holden had just had a counseling session with the Warden, Scipper was surprised that Holden would almost immediately be involved in an altercation with a staff member. He relieved Holden of her duties for the rest of her scheduled shift. The next day Holden met as scheduled with Warden Johnson. Captain Scipper did not attend this meeting. Johnson had been informed of the previous day’s incident between Officers Holden and Shiver. He asked Holden if she was willing to change her attitude. He had not determined prior to the meeting if he would take any action at all against Holden. Johnson felt that Holden's response to him was disrespectful, and that she did not have the right attitude. Johnson terminated Holden based on what he perceived to be her poor attitude. He knew that Holden was approaching the end of her probationary status and that if he wanted to terminate her before she attained career service status with its attendant protections, he needed to do so at that time. Petitioner complained in an incident report filed before the Warden the first time that Captain Scipper refused to listen to her when he counseled her about a prior staff altercation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2003. COPIES FURNISHED: Kimberly Holden 2103 Vista Road Marianna, Florida 32448 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner in violation of the Florida Civil Rights Act of 1992 (Sections 760.01 through 760.11, Florida Statutes.)1
Findings Of Fact Respondent is a political subdivision of the State of Florida with over 50 departments and 30,000 employees. GSA is the Respondent’s department responsible for providing security to other county departments and facilities. GSA provides security services by contracting with private vendors. At the times relevant to this proceeding, GSA had contracts with approximately seven separate vendors to provide security guards where needed. One of the vendors is Security Alliance, which is a private company that provides security guards to both public and private entities. In 2004, GSA, on behalf of Respondent, entered into a contract with Security Alliance. The “General Terms and Conditions” of the bid document, which were incorporated into the contract between Respondent and Security Alliance, pertained to the responsibility of the vendor as an employer and provided as follows in Section 1.16: The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . . Security Alliance hired the security guards that were assigned to County posts. Only Security Alliance had the authority to terminate one of its employees. Respondent had no authority to terminate the employment of any Security Alliance employee. Security Alliance paid the salaries and the employment taxes of the security guards it employed to work on County posts. Security Alliance administered their annual and sick leave. Security Alliance supervisors monitored the daily activities of the Security Alliance security guards assigned to the various County facilities. Security Alliance employed approximately 250 security guards to service the contract it had with Respondent. As noted above, the contract between Respondent and Security Alliance gave Respondent the authority to require Security Alliance to remove a security guard from a County post if Respondent deemed the security guard’s performance to be unacceptable. Respondent could require that a particular security guard not be assigned to specific County posts. Respondent could also require that a particular security guard not be assigned to any County post. Security Alliance could assign the security guard to other duties with Respondent (depending on the Respondent’s instructions to Security Alliance) or with other clients. Petitioner is a black male whose national origin is Haitian. In 2003, Security Alliance hired Petitioner as a security guard and assigned him to work at facilities operated by Respondent’s Water and Sewer Authority (WASA). Petitioner was one of between 30-to-50 security guards assigned by Security Alliance to WASA facilities. The Preston Water Treatment Plant (Preston Plant) is a water purification and distribution facility operated by WASA. The Preston Plant runs around the clock and is considered by Respondent to be critical infrastructure. Security must be maintained at the Preston Plant at all times because of the need for a safe water supply and because dangerous chemicals are maintained there. On October 16, 2006, Michael Breaux, a white male, was employed by WASA as a Security Supervisor. His duties included monitoring the performance of guards assigned to security posts at WASA facilities. On October 16, 2006, Mr. Breaux conducted a routine check of the security posts at the Preston Plant. Mr. Breaux observed the security guard at the front gate slumped over his chair with his back to the gate. That security guard was subsequently identified as Petitioner. Mr. Breaux observed that Petitioner was inattentive. Mr. Breaux testified, credibly, that Petitioner’s lack of attention to duty posed a security risk. Nick Chernichco, Mr. Breaux’s supervisor, told Mr. Breaux to report his observations to Mr. Wolfe, who was the GSA security manager. Mr. Breaux reported his observations to Mr. Wolfe orally and in writing. Mr. Wolfe is a white male. When he reported his observations to Mr. Wolfe, Mr. Breaux did not know Petitioner’s national origin. Petitioner failed to establish that Mr. Breaux's actions following his observations of Petitioner at the guard station were motivated by Petitioner’s race or national origin.5 Mr. Wolfe did not meet with or talk to Petitioner in October 2006. After speaking to Mr. Breaux and reviewing the written report Mr. Breaux generated, Mr. Wolfe instructed the Security Alliance manager (Al Martin) not to assign Petitioner to a WASA facility. Mr. Wolfe took that action based on Mr. Breaux’s opinion that Petitioner’s lack of attention created a security risk. Petitioner failed to establish that Mr. Wolfe’s action was motivated by Petitioner’s race or national origin.6 After Mr. Wolf’s instruction to Mr. Martin, Security Alliance could have assigned Petitioner to any County facility other than a WASA facility or to another Security Alliance client. On May 17, 2007, Mr. Wolfe conducted rounds to check on security personnel at various County facilities. He came upon a security guard at the pump station located at 911 Northwest 67th Avenue, Miami, which is a WASA facility. The greater weight of the credible evidence established that Mr. Wolfe did not remember Petitioner, who was the security guard he met. Mr. Wolfe observed that Petitioner was in violation of the uniform policy and had unauthorized reading material at his post. Mr. Wolfe returned to his office and proceeded to reduce to writing what he had observed. While preparing his memorandum Mr. Wolfe realized that Respondent had instructed Security Alliance not to use Petitioner at any WASA facility. Because of that prior order, with which Security Alliance had failed to comply, Mr. Wolfe informed Security Alliance of his observations, instructed Security Alliance not to use Petitioner as a security guard for any County post, and imposed a fine against Security Alliance in the amount of $1,800.00. Mr. Wolfe had no interest whether Petitioner retained his employment with Security Alliance and he did not intend to interfere with that employment, as long as Security Alliance did not assign Petitioner to a County post. Petitioner failed to establish that Mr. Wolfe’s actions following his observations on May 17, 2007, were motivated by Petitioner’s race or national origin. On or shortly after May 17, 2007, Security Alliance terminated Petitioner’s employment for failing to adhere to its policies. Brunelle Dangerville filed a Charge of Discrimination against Respondent. That complaint, together with Mr. Dangerville’s testimony, established that Mr. Dangerville and Petitioner were not similarly situated employees. Consequently, the claims raised by Mr. Dangerville’s Charge of Discrimination are irrelevant to this proceeding. Taken as a whole, the evidence in this case is insufficient to establish that Respondent was Petitioner’s employer or that it, acting through Mr. Wolfe or otherwise, unlawfully discriminated against Petitioner on the basis of his race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondent not liable to Petitioner for the alleged discriminatory employment practice(s). DONE AND ENTERED this 17th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of March, 2009.
Findings Of Fact At all times material to this proceeding, the Respondent was a certified law enforcement officer having been certified by the Commission on August 5, 1983 and issued certificate number 43-86-017-01. Respondent had previously been certified as a law enforcement officer by the Commission in December 1974 but that certificate expired while Respondent was attending college. At all times material to this proceeding, Respondent was employed as a deputy sheriff by the Osceola County Sheriff's Office. However, Respondent began his employment as a law enforcement officer in 1974 when he worked for the Windermere Police Department in Orange County, Florida, and since July 1990 has worked part-time for the Davenport Police Department. Respondent has been employed full-time as a financial consultant with Merrill Lynch since February 1990. Respondent is licensed in Florida under Chapter 517, Florida Statutes to conduct securities transaction and licensed under Chapter 626, Florida Statutes to conduct business in annuities, life insurance and health insurance. Licensure under both Chapter 517, Florida Statutes and Chapter 626, Florida Statutes, requires, among other requirements, that the licensee be of good moral character. On September 29, 1989, Respondent was on duty as an Osceola County Sheriff's Department deputy assigned to the southwest portion of Osceola County. At approximately 1800 hours, Respondent was dispatched to a residence in the community of Poinciana to talk to the parents of two minor females (ages fourteen and sixteen) who were allegedly provided alcoholic beverages by three adult males earlier in the day. The juveniles, who had skipped school, advised Respondent that the three males had taken them to a lake and allowed them to drink beer and go swimming. The three males involved were pointed out to Respondent, who then went to the males and questioned them. During this questioning, a "field contact card" was completed on each male. The time of completion of the cards is indicated on the cards to be 1830 hours (6:30 p.m.). By reason of the completion of the cards, Respondent identified the names of the three males (Robert Miller, William Troy, and Clayton Daniel Worley), their ages (27, 26, and 19 years, respectively), their addresses, phone numbers, physical descriptions, social security numbers, and, for Miller and Worley, drivers license numbers. Worley was identified as owner of the red pickup truck on the scene. After completing the contact cards, Respondent returned to the victims. One victim, J.B., age 14, reported that while she was in the water, Robert Miller started feeling her breasts and that Clayton Worley also grabbed her and started fondling her breasts. According to J.B., she told Miller and Worley to leave her alone, and she went ashore. J.B. then related that William Troy then asked her to go for a walk and that during the walk, Troy grabbed J.B. and tried to kiss her, than pulled his penis from his pants and forced her hand into it. J.B. indicated she pulled away but Troy grabbed her again and tried to force her to touch his penis. J.B. indicated Troy repeatedly asked her to perform various sex acts and she refused. According to J.B., the three males agreed to take the girls home and, when the truck stopped at an intersection, J.B. jumped from the truck and sought help. By the time Respondent learned of the breast fondling and penis exposure allegations, the males had left the scene. Respondent contacted his supervisor then-Sergeant Robert Hansell who talked with him about probable cause to arrest the three suspects. Hansell further contacted the on-call investigator Detective Andy Strecker who agreed with Hansell that there was probable cause to effect arrests for lewd and lascivious acts committed in the presence of a minor. Strecker contacted Respondent by phone, instructed him to send the parents and juveniles to the Sheriff's Office for sworn taped statements and to effect the arrest of all three suspects, if possible, on the felony charge of lewd and lascivious acts. Neither Hansell nor Strecker advised Respondent to charge sexual battery at that time, although Respondent still considered it a probable charge. After leaving the victim's home, Respondent attempted to locate the three males. During this attempt, he identified the red pickup truck and made a traffic (felony) stop of the vehicle at the intersection of San Remo Court and Deauville Court in Osceola County. Respondent recognized the driver as one of the three males who had been questioned by Respondent in conjunction with the "field contact cards" earlier, and knew the driver was not the vehicle owner, Clayton Worley. The traffic (felony) stop was indicated to the Osceola Sheriff dispatcher by Respondent at approximately 204658 (two seconds before 8:47 p.m.). Respondent exited his patrol car and ordered Miller to get out of the truck. When Miller reached the front of the patrol car Respondent ordered him to place his hands on the hood of the patrol car. As Miller placed his hands on the hood of the patrol car, Respondent stepped up behind Miller and advised him he was under arrest. At this time Respondent noticed a bulge in Miller's right rear pocket that was not there earlier when Respondent had asked for identification. Before Respondent could secure the handcuffs, Miller began acting belligerently by raising his hands and turning around and asking why he was being arrested. Respondent pushed Miller back onto the hood of the patrol car, advised him he was under arrest again, and told Miller to place his hands behind his back. Miller did not comply but spun around bumping into the Respondent. At this point, Respondent felt a hit against his weapon and a pull on his gunbelt causing Respondent to think that Miller was attempting to get his weapon. As a result, Respondent pushed Miller away and swung his gunside away from Miller. As Respondent recovered his balance, he turned toward Miller who was on his hands and feet in the roadway beside the driver's side of the patrol car. Respondent grabbed for Miller, but Miller jumped up and ran counter clockwise around the patrol car, west on San Remo Court to Deauville Court, a distance of about 35 feet. Respondent pursued Miller on foot as Miller turned south on Deauville Court. Other than Respondent's flashlight, the only light in the area was a street light at the southeast corner of San Remo Court and Deauville Court. As Respondent chased Miller away from the street light the area of the chase became less illuminated, and required Respondent to depend more on his flashlight. Since Respondent had failed to switch his flashlight from wide beam to narrow beam the flashlight did not provide sufficient light for Respondent to clearly observe Miller's actions during the chase. After the Respondent had chased Miller about 77 feet, Miller suddenly stopped about 30 feet from Respondent. Miller then turned toward Respondent with both hands somewhat extended and held close together in front of his body about waist level in what Respondent considered an offensive position. Miller made no effort to raise his hands as to give up. Since Miller had escaped before Respondent had been able to determine what the bulge was in his rear jeans pocket, Respondent believed that Miller had a weapon and was preparing to shoot him. Because they had moved away from the street light into a less illuminated area during the chase, the Respondent was unable to determine if Miller had a gun in his hands. Under the circumstances the Respondent feared for his life, and therefore, pulled his weapon, aimed and fired once. Miller then turned and ran south on Deauville Court again with Respondent pursuing him. Miller ran another 40 or 50 feet, suddenly stopped and pivoted toward Respondent, again holding his hands together low and in front of his body similar to that used to hold a handgun at low port. When Miller continued to hold his hands in an offensive position, the Respondent, again in fear for his life, fired three rounds. Apparently, Miller turned to run while Respondent was still shooting since Miller was hit in the lower right side of his back just above the hip through the Levi-Strauss patch on his jeans by one of the bullets. Although Respondent thought he had hit Miller, he began to have doubts that he had hit him when Miller started running again without staggering. Miller ran a short distance further south on Deauville Court before turning right (southwest) into an area of tall grass and ducked out of sight. Respondent followed Miller a short distance into a wooded area but retreated when he realized he might be shot from ambush because at this point Respondent still assumed that Miller was possibly armed. At approximately 8:49 p.m., Respondent requested a K-9 unit for searching the area. Respondent made this call for the K-9 unit from his hand- held radio while he was still near the area where Miller had entered the woods. This call was made approximately two minutes after Respondent indicated to the dispatcher that he was making the traffic (felony) stop. Upon returning to his patrol car, Respondent and Deputy Larry Dodson who had responded to Respondent's call for assistance removed Clayton Worley, the vehicle's owner, from the truck. Worley was unconscious from alcohol consumption but otherwise okay. Respondent explained to Dobson what had transpired and Dobson called Sergeant Hansell and secured the perimeter until the K-9 unit arrived. K-9 officer, Deputy Lisa Bowen arrived at approximately 9:07 p.m., and although not advised by Respondent that Miller might be armed and dangerous or that Respondent had fired shots at Miller, Bowen had heard the call for assistance and the shots-fired dispatch. Deputy Bowen proceeded to search the area in accordance with proper procedures, and eventually found Miller and placed him under arrest. Deputy Cutcher who had also responded to the call for assistance handcuffed Miller. Miller advised the deputies that he had been shot and could not move. Deputy Bowen found one bullet entry and requested paramedics and ambulance at approximate 9:48 p.m. Miller was identified from his wallet which had been taken from his pocket by Deputy Cutcher. When Sergeant Hansell, who had arrived on the scene, learned that Miller had been shot and was possibly armed, he directed the 9MM "spent" shell casings to be secured, that all law enforcement officers be advised that Miller may be armed, and directed Respondent to sit in his patrol car and not to discuss the incident with anyone. No firearm was found on Miller, and no firearm was found at the scene other than the service firearm secured from Respondent. Four 9MM "spent" casings from Respondent's service firearm were found at the scene. One "spent" 9MM casing was found in the area where Respondent first fired at Miller and three "spent" 9MM casings were found in the area where Respondent fired at Miller the second time. No other "spent" bullet casings were found at the scene. The shot that wounded Miller was fired by Respondent using his service firearm. Miller was admitted to Humana Hospital in Kissimmee at 11:15 p.m. where the bullet was surgically removed from the abdominal area by Dr. Antonio Ramirez. Miller's blood alcohol content was determined to be 0.18 percent. Evidence of Benzodiazepine (a class of tranquilizer which includes valium), cannabnoid, and cocaine metabohite were found by a urine drug screen. The arrest history for Miller indicates two arrests for resisting arrest; one dismissed and one with no disposition, and one charge of battery on a police officer which was dismissed. Subsequent to the night of the incident, Investigator Ryan, with the assistance of Deputy Bowen and Detective Webster, conducted an experiment at the scene to determine what the Respondent could have observed in regards to Miller's action under the same conditions as on the night of the incident. Notwithstanding the results of this experiment, the most credible evidence of what the Respondent may have seen or thought he saw during the chase of Miller was Respondent's testimony in this regard which is set out in the above Findings of Fact. While I understand Ryan's effort in this regard, none of those involved in the experiment had to make decisions on what they saw while chasing a person who had just escaped and who may possibly be armed. Respondent did not enjoy this luxury on the night of September 29, 1991 while chasing Miller who, Respondent had reason to believe, might be armed. Stewart R. Hudson, a special agent with the Florida Department of Law Enforcement investigated possible criminal charges against Respondent for aggravated assault concerning the shooting of Miller by Respondent on September 29, 1989. Hudson's investigative report, dated October 9, 1989, was submitted to the State Attorney's Office, Ninth Circuit, and to Sheriff Jon Lane. On November 7, 1989, the State Attorney's Office presented to the Grand Jury Hudson's investigative report. Agent Hudson, Sergeant Hansell and Major Magnaght testified before the Grand Jury regarding the shooting. The Grand Jury voted No True Bill, apparently finding the shooting to be justifiable use of force pursuant to Section 776.05, Florida Statutes. On October 11, 1989, an Osceola County Sheriff's Office Investigator interviewed Respondent regarding the shooting of Miller. Subsequently, the investigator asked Respondent to take polygraph examinations on October 19 and October 27, 1989. Each of the exams showed that Respondent was truthful regarding his fear for his life on September 29, 1989, and truthful in answering Sergeant Ryan on October 11, 1989. 2/ Nevertheless Sergeant Ryan indicated that Respondent was untruthful regarding whether Respondent struggled with Miller and whether Miller was facing him with his hands in a threatening manner when Andrews shot him. When Ryan told Respondent and impressed upon him he did not believe him after the polygraph examinations on October 19 and 27, 1989, Respondent changed his account of the two points which Ryan said showed deception and tried to comport his testimony with what he had been told the polygraph examinations showed. Respondent then requested to be polygraphed again on those questions to prove that he had been truthful in the interview of October 11, 1989, in his incident report and in his interview with Agent Hudson. Ryan indicated that he could not do another polygraph and reported that Respondent had given false information during the internal investigation with the intent to mislead the investigators. At the meeting when Respondent was dismissed on November 6, 1989, Andrews stood by his report and explained the changes in the October 27, 1989 interview with Sergeant Ryan. When he had finished, Commander Croft asked if Respondent was allowed or given the opportunity to be polygraphed after he changed his account of the shooting. Ryan indicated that they had already discussed this and told Respondent, "Don't go muddy up the water." Respondent's employment with the Osceola County Sheriff's Office was terminated November 6, 1989. Notwithstanding that Respondent changed his story to comport with the alleged results of the polygraph examinations of October 11 and 27,1989 that he was being untruthful concerning the matter set out above, the more credible evidence concerning the events of the night of September 29, 1989 which led up to the shooting of Miller is Respondent's testimony at the hearing which comports in almost every detail with the Offense Incident Report which was completed and filed by Respondent shortly after the incident occurred. Respondent's reason for changing his story concerning Miller's action was that he was aggravated by the investigation, and thought that by giving the "changed answers" to the same questions on another polygraph examination would indicate that he was also being untruthful with the "changed answers" and hopefully, this would clear up those areas on the two previous polygraph examinations. There was sufficient substantial competent evidence to establish that Respondent was in fear in his life, on both occasions, when he shot at Miller on September 29, 1989, and that Respondent's reasons for changing certain statements about the incident was done neither with the intent to mislead the investigation nor to accomplish some unlawful purpose.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Administrative Complaint, as amended at the hearing, filed against the Respondent be dismissed in its entirety. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 16th day of December, 1991.
