The Issue Is the Respondent unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of any mental or physical condition? If yes, what is the appropriate disciplinary response to that impediment?
Findings Of Fact The Petitioner, in accordance with Chapters 20, 455, and 458, Florida Statutes, regulates the practice of physician's assistants in Florida. The Respondent practices as a physician's assistant in Florida. His license number is PA002355. PRESENT EMPLOYMENT At present, the Respondent works as a physician's assistant for Michael Dulaney, M.D. Dr. Dulaney is a board- certified family practitioner. The Respondent has worked for Dr. Dulaney for approximately one year. Dr. Dulaney has been satisfied with the Respondent's work. Dr. Dulaney has had no reports of problems with the Respondent's conduct reported by patients or other office staff. In particular, Dr. Dulaney does not have any specific knowledge concerning complaints made about Respondent related to sexual misconduct from the period February, 1992 forward. At present, the Respondent's practice in Dr. Dulaney's office is limited to treatment of adults; however, Dr. Dulaney would not be opposed to having the Respondent treat minors and adults. Dr. Dulaney is aware of the reasons for the present restrictions on the Respondent's practice, limited to care of adults. These limits are as had been imposed by the Physicians Recovery Network (PRN) based upon the Respondent's mental health status. The controls that are in place by Dr. Dulaney to limit the Respondent's present practice to adults include an inquiry by office staff when an appointment is made by a patient as to the age of the patient and another check when the patient arrives for the appointment as to the patient's age. The Respondent is also required to check the patient's age before rendering care. The protocol followed by Dr. Dulaney in his practice is to the effect that no female patient is examined by a doctor or a physician's assistant without a second staff member being in attendance. The second staff member would be a female. Should the Respondent not be allowed to provide care to minors in the future, Dr. Dulaney would allow the Respondent to remain as a physician's assistant and treat adults only. HISTORY On or about June 18, 1992, following allegations regarding custodial sexual battery of his 14-year-old stepdaughter, K.B., the Respondent entered into a monitoring contract with the PRN. The Respondent had also sexually abused his six or seven-year-old daughter from his first marriage. The Respondent was sexually abused by male and female siblings as a child. Raymond Pomm, M.D. specializes in general psychiatry, as well as addiction psychiatry. Among other duties, Dr. Pomm is a staff psychiatrist for the PRN. While under the terms of the monitoring contract in connection with the State of Florida Department of Business and Professional Regulation's Impaired Practitioner's Program, Dr. Pomm consulted the Respondent's physician employers on occasion to determine the Respondent's conduct as a physician's assistant. Dr. Pomm never received a report from the employers that the Respondent was acting inappropriately. On these occasions, the employers would indicate that they were satisfied with the Respondent' s work. When the Respondent signed the monitoring contract with the PRN, he agreed not to see patients under 18 years of age; to have a supervising physician report to the PRN on a quarterly basis regarding his behavior. The Respondent's supervising physician was responsible to make sure that patient information forms were handed out to patients to allow the patients to give immediate feedback concerning their perception of the Respondent's behavior. The supervising physician was to review 10 percent of the Respondent's charts on a quarterly basis. The Respondent was to receive ongoing therapy from John Vallely, Ph.D., a psychologist. On December 28, 1993, Dr. Goetz, the Director of the PRN, wrote to the Secretary of the Department of Business and Professional Regulation to advise the Secretary that Dr. Goetz was convinced that the Respondent's impairment seriously effected the public health, safety and welfare. This was followed by action by the State of Florida, Department of Business and Professional Regulation, Board of Medicine, to bring the Administrative Complaint, under Case No. 93-07340, charging the Respondent with being unable to practice his profession as a physician's assistant with reasonable skill and safety to patients based upon his illness and mental status. The Administrative Complaint makes reference to the opinion of Dr. Vallely. The opinion of Dr. Vallely which promoted the complaint was that the Respondent carried an Axis II Diagnosis of Mixed Personality Disorder with Obsessive- Compulsive, Anti-Social and Paranoid Features, and that the Respondent would need long-term therapy. The Administrative Complaint makes reference to a recommendation by Dr. Vallely that the Respondent's practice be limited to patients 18 years of age and older. Dr. Vallely did not testify in this proceeding to render his opinion concerning the Respondent's fitness to practice. Testimony on this subject was presented by Barbara A. Stein, M.D., testifying for the Petitioner. She is board-certified in general psychiatry and forensic psychiatry. In opposition to that testimony, the Respondent presented the testimony of Keith R. D'Amato, Ph.D., who is a clinical and forensic psychologist, who treated the Respondent. The Respondent also presented the testimony of Gini Fort, M.A., in counseling psychology, who worked with Dr. D'Amato in treating the Respondent. The Administrative Complaint makes reference to findings by George Bernard, M.D., who examined the Respondent and diagnosed the Respondent as suffering from pedophilia, opposite sex, non-exclusive type. Dr. Bernard did not testify in this proceeding. The Administrative Complaint makes reference to a determination on July 8, 1993, when the Respondent was evaluated by Gene Abel, M.D., of the Behavioral Medicine Institute in Atlanta, Georgia, in which Dr. Abel recommended that the Respondent not be in a medical setting, where the Respondent had proximity to girls under 18 years of age, nor in proximity to his former victim, taken to mean the Respondent's stepdaughter, until the Respondent had further treatment. Dr. Abel did not testify in this proceeding. Finally, the Administrative Complaint makes reference to the reference by Dr. Vallely, on December 16, 1993, in which Dr. Vallely described the Respondent as "a highly dangerous sex offender with pedophilic desires and attractions". The Respondent was also seen by Michael J. Herkov, Ph.D. at the time the Respondent was seen by Dr. Bernard. Dr. Herkov is a psychologist. Dr. Herkov did not testify in this proceeding. The treatment and evaluations performed by Drs. Vallely, Bernard, Herkov and Abel were all in association with the monitoring performed by the PRN. Although the health care providers associated with the Respondent that have been mentioned in the prior paragraph did not testify in this proceeding, their insights assisted Drs. Stein and D'Amato and Ms. Fort in arriving at their opinions concerning the Respondent's condition. Consequently, it is to some advantage to describe the history of treatment and evaluation by those health care providers, notwithstanding the inability to rely upon their independent judgment in determining the Respondent's present ability to render care with reasonable skill and safety. The Respondent began seeing Dr. Vallely in June, 1992 and received treatment off and on until December, 1993. For the benefit of the PRN, Dr. Vallely indicated that the Respondent carried a diagnosis of pedophilia and mixed personality disorder with obsessive- compulsive, antisocial and paranoid features. Dr. Vallely tried to address these conditions. Other attempts were made by the PRN to assist the Respondent. On December 9, 1992, the Respondent saw Drs. Bernard and Herkov. They diagnosed the Respondent as having pedophilia, opposite sex, non-exclusive type. At that time, according to a report by these health care providers, there was no information indicating that the Respondent was being presently sexually inappropriate with patients or any indication that he would engage in that behavior in the future. The recommendation by Drs. Bernard and Herkov was that the Respondent continue to be restricted in seeing children under the age of 18, be they male or female, until such time as the Respondent's treating therapist felt that the restriction was no longer necessary. The Respondent was initially treated by Dr. Vallely through June 18, 1993, at which time, Dr. Vallely suspended the Respondent's care. At that juncture, Dr. Vallely expressed the view to the PRN that the Respondent was manipulating therapy in attempting to gain closer contact with his stepdaughter. At that time, the Respondent expressed the view to the PRN that he did not believe that he was being heard by Dr. Vallely and that Dr. Vallely was overreacting. The Respondent requested another therapist to resolve this conflict. The PRN recommended that another evaluation be performed by a professional. This led to an evaluation by Dr. Abel in Atlanta, Georgia. The evaluation by Dr. Abel took place on July 8, 1993. Dr. Abel is recognized as an expert in the treatment of child sexual abusers. Although Dr. Abel did not arrive at a formal diagnosis, he summarized his belief of the continuing existence of pedophilia on the Respondent's part and a concern about the Respondent's manifest symptoms of arousal in relation to minor females. That concern was addressed through a penile plethysmophgraphy performed on the Respondent, in which the Respondent evidenced arousal to young girls. In his conclusions, Dr. Abel recommended that the Respondent should not be allowed to treat girls under 18 years of age. The Respondent then returned to receive therapy from Dr. Vallely. The Respondent and Dr. Vallely continued to have conflict concerning the Respondent's relationship with his stepdaughter and the Respondent's intention to remarry his ex-wife. Eventually, the Respondent was expelled from the program administered by Dr. Vallely. This expulsion took place on December 16, 1993 and was followed by the correspondence of December 28, 1993 by Dr. Goetz recommending that the Department of Business and Professional Regulation find that the Respondent's condition seriously effected the public's health, safety and welfare. The Respondent was referred to Dr. D'Amato from the State Attorney's Office. This was in association with the case of State of Florida v. Stephen Allan Newbern, in the Circuit Court of Duval County, Florida, Case No. 92-3347CF CR-C, as agreed to by the Respondent's counsel. The day Dr. D'Amato first saw the Respondent was February 10, 1994. The case described was the case in which the Respondent was accused of custodial sexual battery directed to his stepdaughter, K.B. Following the Respondent's decision to remarry his ex-wife, the Respondent was arrested in association with the aforementioned Circuit Court case, in which he had previously been allowed probation to participate in the program conducted by Dr. Vallely. The reason for the Respondent's arrest was premised upon a report by Dr. Vallely concerning the Respondent's decision to remarry his ex-wife. The Circuit Court case was then disposed of on June 24, 1994, in which an order was entered by the court following the Respondent's plea of guilty to a lesser included offense in Count I, lewd and lascivious act. For that plea, the Respondent had his guilt withheld; the Respondent was placed on community control for a period of two years, followed by eight years probation; and the Respondent was ordered not to have contact with his stepdaughter, directly or indirectly, without consent from his counselor or the Community Control Officer. The Respondent was ordered to pay for his stepdaughter's counseling or treatment through a treatment facility or counselor to which the stepdaughter had been referred, as directed by the Community Control Officer. The Respondent was ordered to continue his psychosexual counseling through Dr. D'Amato, who had substituted for Dr. Vallely. In this connection, the Respondent, in February of 1992, had voluntarily hospitalized himself based upon panic attacks and depression. Subsequently, an investigation was conducted by the State of Florida, Department of Health and Rehabilitative Services and the INS of the Navy; and the Respondent was arrested and incarcerated for 21 days for sexually abusing his stepdaughter. As a consequence, he was referred to the KIDS Sexual Offender Program, in Jacksonville, Florida, and directed to receive treatment from Dr. Vallely. In March or April of 1992, the Respondent was advised by his Naval Preceptor, Dr. Carrierre, to refer himself to the PRN. The Respondent accepted that advice and took the referral in May, 1992 and signed a contract in June, 1992 to monitor his mental health status. The Navy found him guilty of the sex offense and allowed him to remain in the service on active duty until his retirement on October 31, 1992. During this time, he served as a physician's assistant but was limited in his practice to adults only. When the Respondent attempted to reunite with his ex-wife in February, 1993, Dr. Vallely suspended him from the KIDS Program. In June, 1994, the Respondent was accused of violating his probation associated with the case in which he was a participant in the KIDS Program. The allegation of violation of probation was in relation to the Respondent's decision to stay with his ex-wife and stepdaughter in January, 1994. The Respondent was not prosecuted for this violation because he agreed to enter Dr. D'Amato's sexual offender program. In turn, he entered a nolo contendere plea to lewd and lascivious act and had the order entered on June 24, 1994 setting the terms of continued probation. The Respondent received treatment from Dr. D'Amato and Ms. Fort for approximately two years. In his practice, Dr. D'Amato specializes in the treatment of sexual offenders and has treated 500-700 persons with those conditions. Of those persons, two to three percent have been referred for a jail sentence and another two to three percent have been terminated from the treatment program. To deal with the Respondent's pedophilia, Dr. D'Amato conducted an initial clinical interview. Dr. D'Amato performed a number of tests to gain an impression of the Respondent's condition, to include the Minnesota Multiphasic Personality Inventory, the Beck Depression Inventory, the Columbia Sexual Screening Questionnaire, the Jackson Incest Blame Questionnaire, the Wilson Sex Fantasy Questionnaire, the Sexual History Questionnaire, and the Sexual Interest Card Sort. Following the initial assessment, Dr. D'Amato entered the Respondent into a treatment program, which had four levels. Level I was designed to insure safety of the community by restricting movement and by insuring that the Respondent owned up to and took responsibility for the sexual offense that had been committed against his stepdaughter. Levels II and III were devoted to psycho-educational activities, where the Respondent was expected to learn to identify antecedents to the sexual misconduct that had been committed. Level IV was a relapse-prevention process to allow the Respondent to develop a comprehensive plan that could "offshoot" any problems, stresses or arousals that would lead the Respondent to re-offend in the future. During the first phase of the treatment received by the Respondent, an abuse letter was written, a meeting was held with the victim to confront the abuse, history of the abuse was taken, and an apology letter was written. During the second and third phases, the Respondent learned to identify stresses that may lead to problems and to develop empathy for the victim. The emphasis of Dr. D'Amato's program that he administered to the Respondent was cognitive in nature. The program was anticipated to last between two and five years, depending on the person receiving the therapy. Patients in the program are seen in group treatment and, in some instances, receive marital or family therapy individually. The Respondent had polygraphs administered to him to attempt to determine if there was ongoing sexual abuse and to determine if the types of fantasies that the Respondent was entertaining when he entered the treatment program were still in evidence. In treating the Respondent, Dr. D'Amato did not use behavioral therapy to any large extent. This choice was made because having the Respondent undergo polygraphs and looking at the Respondent's psychological assessments which were done over the years, led Dr. D'Amato to believe that the primary problem that the Respondent had was in distorting information. It was observed, through the polygraph examinations, that the Respondent was not showing deviant sexual arousal. Therefore, it was not deemed necessary to offer treatment to deal with that form of problem. It was deemed more important to deal with cognitive restructuring of the Respondent and his view of life and people and interpersonal relationships. The Respondent did receive some behavioral training in his treatment by Dr. D'Amato, referred to as covert desensitization and role playing. Dr. D'Amato believes that cognitive therapy is the best approach to treating pedophilia, non-exclusive type, which the Respondent evidenced. Non-exclusive pedophiles, as defined in DSM-IV, have age-appropriate relationships, whereas fixated pedophiles focus exclusively on children. The Respondent was last seen by Dr. D'Amato in March, 1996. At that time, Dr. D'Amato diagnosed the Respondent as having a mixed personality disorder, NOS., with slight depression, not of a clinical nature, that the Respondent still suffered from post-traumatic stress disorder and pedophilia, non-exclusive type in remission. Dr. D'Amato does not believe that the Respondent needs to undergo further treatment to address the Respondent's condition, in that the Respondent is not showing any active symptoms, has acted in a responsible manner in his work and life, and has integrated back into his family. To require therapy when it is not needed would cause the Respondent to be more resistant, and the Respondent would not grow from the experience, according to Dr. D'Amato. Dr. D'Amato believes that the Respondent has good relapse prevention skills and has shown that he is implementing those skills in his life. Dr. D'Amato relied upon the polygraph examinations to determine whether the cognitive therapy received by the Respondent was successful. In doing so, Dr. D'Amato recognizes that the polygraph measures physiological responses following the subject's answer to a question. Dr. D'Amato did not refer to the prior penile plethysmophgraphy testing to confirm the Respondent's status and did not administer that test. He sees the latter test as being a measurement of sexual response to pictures, which is less important to Dr. D'Amato than the question of whether the Respondent is having sexual fantasies or acting out in a sexually-inappropriate way, which Dr. D'Amato believes the polygraph examination would uncover. Dr. D'Amato has experienced 95 percent success in the treatment of sexual offenders. Nonetheless, he recognizes that this success does not establish that persons who are pedophiles, who have not been known to re-offend, are cured. Dr. D'Amato is not aware of any reports concerning misconduct by the Respondent in treating patients. Dr. D'Amato does not believe that the Respondent should have his practice restricted to adults only. Dr. D'Amato was impressed with the Respondent's ability to deal with stress in relation to a death within the Respondent's family, various legal problems associated with the Respondent's sexual abuse of his stepdaughter, his work load, and the re-unification of the Respondent's family, without committing further sexual abuse based upon the stress. Dr. D'Amato saw the experience which the Respondent had in re-unifying his family as being helpful to his treatment by giving the Respondent the opportunity to deal with the realities of those relationships and to reconstruct those relationships in a positive manner. Dr. D'Amato observed that the Respondent's religious convictions assisted the Respondent in his rehabilitation by sharing the experience with his family and providing a code of conduct to follow. Dr. D'Amato recognized that the Respondent's character structure would not change over time but believed that the Respondent would change his behavior based upon new strategies and coping lessons that he had learned in the treatment. Dr. D'Amato expressed the opinion that if the Petitioner automatically revoked or suspended the Respondent's license to practice as a physician's assistant, the Respondent would not come forward and seek treatment in the future if he experienced a problem, and the result would be more sexual abuse. Ms. Fort expressed the opinion that the Respondent was a low or no- risk candidate for recidivism. Further, she indicated that the Respondent had successfully handled stress related to his older son coming home and financial difficulties. Ms. Fort expressed the belief that given the Respondent's successful completion of therapy, the Respondent could be in close contact with children in private. In performing her evaluation of the Respondent, Dr. Stein spoke to Dr. D'Amato and Ms. Fort concerning the care they rendered to the Respondent. Dr. Stein saw the Respondent on referral from the Physicians Resource Network, formerly known as the Physicians Recovery Network. Dr. Stein examined the Respondent in February, 1996. Dr. Stein's evaluation included an interview with the Respondent and preparation of a history. Dr. Stein also had access to collateral information from other treatment professionals who had seen the Respondent. Dr. Stein contacted individuals who were familiar with the Respondent's professional and private life. Dr. Stein arranged for Flora Zaken- Greenberg, Ph.D., a clinical psychologist, to perform a clinical interview, record review, and psychological testing by use of a WAIS-R, Beck anxiety inventory, Beck depression inventory, MMPI-2, MCMI-III, and Roschach. Dr. Stein took all of these matters into account in preparing a report of her forensic psychiatric examination. That report was rendered on March 9, 1996. Dr. Stein, in her report, and at hearing, expressed the opinion that the Respondent suffers from pedophilia, non-exclusive type, DSM-IV 302.2, and personality disorder, not otherwise specified, which includes narcissistic, antisocial and dependent personality traits. Dr. Stein pointed out that pedophilia is a type of sexual deviant disorder, which lasts for at least six months, in which setting, the individual has strong urges, behaviors or fantasies of having sex with a prepubescent child, and this impairs the life of the pedophile. In a non-exclusive type of pedophilia, the individual may also have relationships with adults. Dr. Stein described the Respondent's personality disorder as being a circumstance in which the Respondent has difficulty viewing and interacting with the world. The Respondent sees the world through a distorted view, thinking in a distorted way, interacting in a distorted way, being impulsive and having a tendency to have mood problems from time to time. Those traits endure and impair him. That disorder does not necessarily mean that the Respondent could not work. In Dr. Stein's opinion, pedophilia cannot be cured and is a disease that has a very high relapse rate, notwithstanding that there are periods in which the pedophile does not have urges or behaviors or fantasies directed to prepubescent children. Dr. Stein holds the opinion that the Respondent will, given his condition of pedophilia, be at greater risk of sexually acting out inappropriately regardless of whether it is in the workplace or elsewhere. Dr. Stein expresses this opinion with the knowledge that the Respondent has learned a great deal from his sexual offender treatment and that the experience that he has had in participating in the treatment has lowered the risk for him to re- offend. Nonetheless, according to Dr. Stein, his psychological testing shows an underlying character structure that creates a potential for sexual deviance, impulsivity, antisocial acts, and impaired interpersonal relations, particularly so when under stress; and that set of circumstances has not changed overtime. Dr. Stein believes that the Respondent should have his practice as a physician's assistant restricted to adults only and the practice monitored. Dr. Stein believes that the monitoring should include biannual polygraph examinations, in which the following questions are asked: (1) have you had sexual feelings towards children under the age of 18 accompanied by your adult patients?; (2) have you concealed any relevant sexual history from your therapist?; (3) have you attempted to access those or other children under the age of 18?. Finally, Dr. Stein believes that the Respondent should participate in a relapse prevention group for the next 12 months and at least at quarterly intervals beyond that point for an indefinite period. She believes that this would assist the Respondent in relapse prevention, to build a repertoire to decrease his risk for re-offending and to protect society from a professional in his position of trust who has a disorder which cannot be cured. Dr. Stein believes that the additional 12-month therapy, followed by quarterly therapy for an indefinite period, is necessary to preserve a degree of continuity and to reinforce the skills achieved by the Respondent in addressing his condition and promotes the further recognition by the Respondent that he knows that he has to answer to people, and that there are external controls in a setting in which his internal controls are not as good as they need to be. The use of a polygraph on a biannual basis would be a means to aid in the process of exerting controls over the Respondent's conduct. Dr. Stein does not believe that it is necessary to revoke or suspend the Respondent's license completely to address his condition and protect the public. From the views held by Drs. Stein and D'Amato and Ms. Fort, it is clear and convincing that the Respondent has a mental condition which effects his practice as a physician's assistant and the ability to render care with reasonable skill and safety to his patients. According to the evidence, the Respondent has performed his practice in an acceptable manner when limited to treating adults only. Dr. D'Amato and Ms. Fort believe that the Respondent could practice as a physician's assistant in contact with children. Dr. Stein disagrees with that opinion. The experts also disagree concerning recidivism rates for pedophiles. Dr. D'Amato and Ms. Fort believe that the rate is low for their program. Dr. Stein does not generally hold that opinion. Given the seriousness of the Respondent's illness and the risk it presents to children, the lack of ability to cure his condition, and the possibility of relapse, however slight, there is a real concern about patient safety should the Respondent be allowed to practice as a physician's assistant treating children. To that end, Dr. Stein's opinion is more compelling when she urges restrictions on the Respondent's practice. Although Dr. D'Amato does not believe that a relapse prevention program is needed for the Respondent, if determined to be needed, he is persuaded that a program should only extend for six months. Having considered the views held by Drs. Stein and D'Amato, a further relapse prevention program of six months provided by Dr. D'Amato, together with quarterly therapy for an indefinite period beyond that point, with biannual polygraph tests of the sort recommended by Dr. Stein, is appropriate to insure that children, who are treated in the office where the Respondent practices, remain safe. No evidence was produced which would suggest that the Respondent should be completely denied the privilege to practice as a physician's assistant based upon concern that he would not proceed with reasonable skill and safety by reason of his mental illness. The restrictions that are discussed above adequately protect the public without depriving the Respondent of his livelihood.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is RECOMMENDED that a Final Order be entered finding the Respondent in violation of Section 458.331(1)(s), Florida Statutes, restricting his practice as a physician s assistant to adults only, requiring the Respondent to undergo an additional six months of relapse prevention therapy, followed by quarterly therapy sessions for an indefinite period and biannual polygraph examinations. DONE AND ENTERED this 27th day of November, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Terry D. Bork, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street1 Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent, specifically sex discrimination in the form of sexual harassment due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a Caucasian female, from sometime in December of 2003 until termination of her employment on June 21, 2004. Petitioner worked in Respondent’s warehouse facility from December, 2003 until sometime in February, 2004, when she was transferred to one of Respondent’s retail stores, the Ocala store, where she worked until she was transferred back to the warehouse at the end of May or beginning of June, 2004. Petitioner conceded at hearing that she was terminated after she argued with her supervisor and called her a bitch. Petitioner does not believe that she was terminated on the basis of her sex. During the course of her employment, Petitioner alleges that Respondent’s president, Barry Lay, made inappropriate comments to her of a sexual nature and touched her in an inappropriate way twice. All alleged sexually inappropriate conduct occurred from December of 2003 through February of 2004, during the period of time Petitioner worked in Respondent's warehouse facility. Petitioner testified that Barry Lay engaged in the following inappropriate conduct: At the end of her initial employment interview when she was hired, and out of the presence of other witnesses, Barry Lay allegedly said to her, “If we were to fuck that’s nobody’s business but ours.” In her charge of discrimination, Petitioner alleged that this statement was “said in front of witnesses.” Due to Petitioner's inconsistencies in testifying, her demeanor while testifying and Barry Lay's candid testimony of denial with regard to making such statements to Petitioner at any time, Petitioner's allegation is not credited. Petitioner testified that, right before Christmas of 2003, Barry Lay told her, "if I would let him eat me out just one time I wouldn't think about any other man." (T. 23). Petitioner testified that other witnesses, including her mother, were sitting nearby at a processing table when this comment was made. No witnesses corroborated Petitioner's testimony on this allegation and, coupled with Barry Lay's denial testimony, Petitioner's allegation is not credited. Petitioner testified that Barry Lay grabbed her face and tried to kiss her about the same time as he allegedly made the comment discussed above. Again, Petitioner alleges that witnesses were present, but all witnesses testifying in the matter, including Barry Lay, denied that such an incident occurred. Petitioner's testimony on this point is not credited. Petitioner also testified that Barry Lay grabbed her hips and tried to pull her from behind when she was bent over at a refrigerator. The allegation was denied by Lay and no corroborating testimony was presented. Petitioner's allegation is not credited. On one occasion, Barry Lay overheard conversation between Petitioner and her mother regarding their breast size and that they could form the “little titty committee.” Lay commented to the duo that both of them could be president of the committee. Barry Lay never attempted to initiate a romantic relationship with Petitioner and never threatened her with job transfer or termination if she failed to provide sexual favors. On one occasion during the course of Petitioner's employment, when employees were discussing a rumor that Barry Lay was having an affair with several people at one time, he overheard the discussion, became irritated, and addressed the employees as a group saying, “It doesn’t matter if I’m fucking you, you, you, or you, it’s none of your business.” Petitioner was transferred to the Ocala Store during the course of her employment to assist her in getting her children to day care on time. Additionally, the store hours were more suitable to her schedule at the time. Petitioner made sexual remarks, participated in discussions of a sexual nature, or participated in sexual horseplay in the workplace during the course of her employment with Respondent. Petitioner was heard and observed to smack or slap Barry Lay’s bottom and say, “I want a piece of that.” Barry Lay did not do anything to provoke Petitioner’s conduct, but responded by saying, “if you did, you’d never go back to your boyfriend.” While at work Petitioner discussed having oral sex with her boyfriend and the length and frequency of those encounters. During Petitioner's assignment to the Ocala store, she developed problems with absenteeism from the job. She quit calling in when she unable to work and demonstrated a poor attitude when she was at work. As a consequence, Petitioner was transferred back to Respondent's warehouse, where any absenteeism by the Petitioner would result in less of a hardship to operations. The transfer occurred at the end of May or beginning of June, 2004. After Petitioner was transferred back to the warehouse, she continued to exhibit a poor attitude and unacceptable conduct while at work. In June of 2004, just before she was terminated, Petitioner screamed at her supervisor that she was not going to perform a requested task due to medical restrictions. The supervisor informed Petitioner that she was not being asked to perform the task by herself, but simply to assist. Petitioner began using abusive language to the supervisor, calling her a “bitch.” Petitioner was asked to leave, but replied that she would not unless and until the supervisor “fucking” fired her. Petitioner pushed the supervisor and call her a “fucking whore” and “bitch.” Eventually, after using further epithets, Petitioner left the premises. Barry Lay did not witness the argument between Petitioner and the supervisor, but when he was later informed he instructed the supervisor to tell Petitioner that her employment was being terminated. The decision to terminate Petitioner’s employment was communicated to her the next day. Petitioner's stated response to the supervisor, before walking away, was “get fucked.”
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 4th day of October 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2005. COPIES FURNISHED: Kenneth M. Hesser, Esquire Seven East Silver Springs Boulevard Suite 300 Ocala, Florida 34470 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope and Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 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 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 Petitioner was subjected to race and gender discrimination, sexual harassment/hostile work environment, and retaliation, as alleged in her Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, a 36-year-old Caucasian female, was employed by Respondent as a sales associate. She first worked for Respondent at its Sebastian, Florida, store where she started in June 2006. She voluntarily resigned from the Sebastian store in October 2006 and was hired by Respondent's Merritt Island, Florida, store one week later. Respondent owns and operates an appliance retail store in Central Florida. Respondent employs more than 15 people. At some time during Petitioner's employment, John Barnaba, an operations manager who rotated among several stores, said things to her that she found "unacceptable." For example, "You would look good on my Harley," "You look like a biker chick," and "You must be anorexic." He also clapped his hands behind her and said, "hurry, hurry, hurry." She reported Mr. Barnaba's conduct to Phil Roundy, her manager and manager of the Merritt Island store, who said "That's just the way he is," or words to that effect. She was unaware of any other action undertaken by Mr. Roundy regarding her complaint. In January 2007, Petitioner began a voluntary sexual relationship with Mr. Roundy, which involved at some point, Petitioner and Mr. Roundy living together. This relationship lasted until April 29, 2007, when the parties separated. She and Mr. Roundy "got back together in May, about a week after her termination." Mr. Roundy did not sexually harass Petitioner based on the voluntary nature of their relationship, nor did he sexually harass Petitioner between April 29 and May 18, 2007. After Petitioner and Mr. Roundy separated, he started treating her "differently." She reports that he became critical of her and would not assist her. Respondent has published an "information resource for common questions and concerns" titled, "Associate Handbook" that addresses sexual harassment and presents a grievance procedure for employees who believe they have been subjected to unfair treatment. It contemplates reporting the unfair treatment to (1) "your immediate manager"; (2) the store manager; or (3) "[s]hould the problem, however, be of a nature which you do not feel free to discuss with your manager, you are encouraged to discuss the problem in confidence directly with Human Resources." Petitioner requested a transfer to another store on May 1, 2007. She requested the transfer before Mr. Roundy started treating her "differently." She called Human Resources on May 9 and 15, 2007; it is unclear as to whether she called to check on the requested transfer or to report the alleged sexual harassment. She did not timely pursue any recourse suggested in the Associate Handbook. On May 9, 2007, Mr. Barnaba, the operations manager mentioned above, authored an email that characterized several of Petitioner's activities of that work day as "completely unprofessional and insubordinate." The following day, Mr. Roundy emailed his supervisor that Petitioner had gone through his private, business-related emails and discovered Mr. Barnaba's May 9, 2007, email. He also related several incidents that he thought unprofessional and that reflected bad customer service. He advised that Petitioner accused Barnaba and himself of conspiring to try to terminate her. Petitioner was scheduled to work on May 16 and 17, 2007, but did not report to work. She was scheduled to work on May 18, 2007; as a result, Kevin Draco, a risk manager for Respondent, went to the Merritt Island store to interview her. When Petitioner did not appear, management made the decision to terminate Petitioner for "absenteeism."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maurice Arcadier, Esquire 2815 West New Haven Avenue, Suite 303 Melbourne, Florida 32904 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1311 Bedford Drive, Suite 1 Melbourne, Florida 32940
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 at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1993, Petitioner was 25 years old. Petitioner was employed by Sunland to care for its disabled clients. Petitioner's duties included direct contact with the clients of Sunland. The background screen revealed that on November 9, 1993, Petitioner plead guilty to two counts of battery (domestic violence). The conviction was the result of a physical altercation between Petitioner and Petitioner's live-in boyfriend, during which Petitioner threw an iron at her boyfriend missing him and striking her 3 year-old child. As a consequence of the conviction, Petitioner was fined the minimum amount and sentenced to two years' probation. She was adjudicated guilty. Contrary to Petitioner's testimony, the evidence showed that Petitioner has had at least two other encounters with the criminal justice system. The greater weight of the evidence showed that Petitioner has a problem with controlling her anger and in controlling her violent response thereto. Based on the record in this case, Petitioner has not established by clear and convincing evidence that she will not be and is not a danger to disabled or elderly persons with which she might come into contact and that she has not learned to control her anger and use of physical aggression. The Petitioner is therefore not entitled to an exemption from disqualification from employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner, Tammie Collins, an exemption from disqualification from employment. DONE AND ENTERED this 11th day of February, 1999, 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 11th day of February, 1999. COPIES FURNISHED: Steven Wallace, Esquire Department of Children and Family Services Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Tammie Collins Post Office Box 208 Greenwood, Florida 32444 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Did Respondent, Jennifer Abadie, R.R.T., violate sections 468.365(1)(q), 468.365(1)(x), 456.072(1)(v), or 456.063(1), Florida Statutes (2018),1/ by committing sexual misconduct?
Findings Of Fact Section 20.43 and chapters 456 and 468, Florida Statutes, charge the Board with regulating the practice of respiratory care in Florida. Ms. Abadie is a licensed registered respiratory therapist in Florida. Ms. Abadie worked for Comprehensive Healthcare of Clearwater (Comprehensive) from October 24, 2017, through February 4, 2018, at its Pinellas County, Florida, location. Comprehensive is a residential rehabilitation and nursing facility. Ms. Abadies’s 89-year-old father was a patient at Comprehensive from before she started working there until his death. He suffered from dementia. Ms. Abadie visited her father frequently, before and after her shifts and when she was not working. G.B. was a severely ill patient at Comprehensive trying to recover from multiple strokes. G.B. was only 56 years old. However, he had extensive medical conditions. They included hypertension, congestive heart failure, fibromyalgia, diabetes, blindness and end-stage renal (kidney) disease. G.B. received dialysis three times a week for his kidney disorder. He took dozens of medications daily. G.B. also had a tracheostomy. A tracheostomy is a tube that goes into the trachea to help people with impaired breathing breathe. The heavy treatment load weighed on G.B. psychologically and caused him anxiety and depression. Ms. Abadie provided respiratory therapy services to G.B. G.B. recognized Ms. Abadie from an earlier time when she worked at Florida Hospital where he had been a patient. He reminded her of that time and established a friendship with her. Over time, the friendship grew closer. As a result of their friendship and Ms. Abadie's compassion for G.B., Ms. Abadie and G.B. spoke regularly. When Ms. Abadie visited her father, she usually checked on G.B. He and Ms. Abadie talked about the range of subjects that acquaintances talk about including families, children, marital status, holiday plans, and day-to-day lives. They spoke regularly by telephone as well as in person. Although they spoke regularly, Ms. Abadie and G.B. did not always speak at length. Sometimes she just waved and poked her head in to say hello. At G.B.'s request, Ms. Abadie brought him items from outside the facility, such as toiletries and a blanket. G.B. grew very fond of Ms. Abadie and wanted her as his girlfriend and eventually his wife. Ms. Abadie did not encourage or reciprocate these feelings or intentions. Lisa Isabelle was G.B.'s only other visitor. G.B. was a friend of her husband. She had known G.B. for most of their lives. Ms. Isabelle rented G.B. a residence on her property. Ms. Isabelle described her relationship with G.B. as "love-hate." Ms. Isabelle held a durable power of attorney for G.B. His family lived out of town and decided it would be good for somebody local to hold the power of attorney. On Sunday, February 4, 2018, Ms. Abadie came to Comprehensive to visit her father. She wanted to watch the Eagles play in the Super Bowl with him. Their family is from Philadelphia. Ms. Abadie stopped at G.B.'s room first. Charity Forest, L.P.N., was on-duty that day. G.B. was one of her patients. Towards the end of the first of her two shifts, Ms. Forest noticed that the curtain by G.B.’s bed was pulled halfway around his bed, which was unusual. The door was open. Ms. Forest entered G.B.’s room and looked around the curtain. She saw G.B. and Ms. Abadie sitting on the bed, on top of the covers. The head of the bed was raised about 45 degrees to provide a backrest. G.B. was wearing long pajama pants but not wearing a shirt. Ms. Abadie was wearing jean shorts, a T-shirt, and Keds®. Ms. Abadie was resting her feet on her iPad® so she would not dirty the covers. G.B. and Ms. Abadie were not touching each other. They were talking, watching television, and looking at pictures on Ms. Abadie's telephone. The room was a two-bed room. There was a patient in the other bed. Ms. Forest thought that the two sitting on the bed was inappropriate and left in search of her supervisor. Ms. Forest could not locate her supervisor. But she met another L.P.N., Ruth Schneck. Ms. Forest told Ms. Schneck what she had observed. Ms. Schneck went to G.B.'s room. The door was open. Ms. Schneck briefly entered the room. G.B. and Ms. Abadie were still sitting on the bed. Ms. Schneck left immediately, closing the door behind her. She joined the search for the supervisor. Neither Ms. Schneck nor Ms. Forest could locate the supervisor. While looking for the supervisor, Ms. Forest and Ms. Schneck encountered Sean Flynn, L.P.N. They told him what they had seen. Mr. Flynn was a licensed practical nurse and a case manager at Comprehensive. He had come to the facility briefly that day in order to take care of some paperwork. After talking to Ms. Forest and Ms. Schneck, Mr. Flynn went to G.B.’s room and opened the door. Ms. Abadie and G.B. were sitting on the edge of the bed facing the door. Mr. Flynn asked them if anything was going on. They said no. Mr. Flynn left the room and called Nicole Lawlor, Comprehensive's Chief Executive Officer. Ms. Lawlor told Mr. Flynn to return to G.B.'s room, instruct Ms. Abadie to leave, and tell her that she would be suspended pending an investigation. He returned to G.B.'s room with Ms. Forest and Ms. Schneck. G.B. and Ms. Abadie were still sitting on the bed. Mr. Flynn asked Ms. Abadie to step outside. She did. G.B. soon followed in his wheelchair. Mr. Flynn told Ms. Abadie that she was suspended and had to leave. G.B. overheard this and became very upset and aggressive. He insisted that Ms. Abadie was his girlfriend and that he wanted her to stay. Ms. Abadie asked to visit her father before she left. Mr. Flynn agreed. Ms. Abadie visited her father for a couple of hours. Ms. Abadie also called Ms. Isabelle to tell her that Mr. Flynn asked her to leave and that G.B. was very upset. After Ms. Abadie's departure, G.B. became increasingly upset and loud. His behavior escalated to slamming doors and throwing objects. Comprehensive employees decided G.B. was a danger to himself and others and had him involuntarily committed under Florida's Baker Act at Mease Dunedin Hospital. On her way home, Ms. Abadie received a telephone call offering her full-time employment at Lakeland Regional Hospital. February 4, 2018, at 6:08 p.m., Ms. Abadie submitted her resignation from Comprehensive in an e-mail to Ms. Lawlor. Ms. Abadie's only patient/caregiver relationship with G.B. was through her employment with Comprehensive. As of 6:08 p.m. on February 4, 2018, G.B. was not a patient of Ms. Abadie. She no longer had a professional relationship with him. Ms. Lawlor suspended Ms. Abadie on February 4, 2018. She based her decision on the information that Ms. Forest, Ms. Schneck, and Mr. Flynn told her, not all of which is persuasively established or found as fact in this proceeding. Still, Ms. Lawlor's memorandum suspending Ms. Abadie reveals that the nature of G.B.'s relationship with Ms. Abadie and the events of February 4, 2018, were not sexual. Ms. Lawlor's Employee Memorandum suspending Ms. Abadie does not identify a state or institution rule violated in the part of the form calling for one. She wrote "Flagrant violation of code of conduct." The description in the "Nature of Infraction" section of the form reads, "Employee was found cuddling in bed with a resident during her time off." There is no mention of sex, breasts, genitalia, or sexual language. None of the varying and sometimes inconsistent accounts of the day mention touching or exposure of breasts, buttocks, or genitalia. None of the accounts describes or even alludes to sex acts or statements about sex. The only kiss reported is a kiss on the cheek that G.B. reportedly forced upon Ms. Abadie as she was leaving. The deposition testimony of the Board's "expert," offers many statements showing that what the Board complains of might be called "inappropriate" or a "boundary violation" but does not amount to sexual misconduct. He testified about the strain a patient expressing romantic feelings toward a therapist puts on the professional relationship. He says the professional should tell the patient that the statements are inappropriate. The witness says that if the patient starts expressing the romantic feelings by touching the therapist, the therapist must tell the patient that his behavior is inappropriate and begin recording the events for the therapist's protection so that "no inappropriate allegations are made later." (Jt. Ex. 3, p. 3). Asked his opinion about allegations that Ms. Abadie was laying on G.B.'s bed, the witness says the behavior "crossed a professional boundary" and that he was not aware of the "behavior being appropriate in any situation." (Jt. Ex. 3, p. 16). The witness acknowledged that a hug is not inherently sexual. (Jt. Ex. 3, pp. 24 & 30). In addition, the training and experience of the witness do not qualify him as someone whose opinion should be entitled to significant weight. Among other things, he has never written about, lectured about, or testified to an opinion about sexual misconduct. Had the deposition not been offered without objection, whether the testimony would have been admissible is a fair question. § 90.702, Fla. Stat. After February 4, 2018, Ms. Abadie attempted to continue her friendship with G.B. by telephone calls and visits. However, Comprehensive refused for several weeks, against G.B.'s wishes, to allow Ms. Abadie to visit G.B. and would only permit Ms. Abadie brief, supervised visits with her father. G.B. was very upset by Comprehensive's prohibition of visits from Ms. Abadie. He began refusing food and treatment, including medications and dialysis. G.B.'s condition deteriorated to the point that he was admitted to hospice care. At that point, on February 24, 2018, Comprehensive contacted Ms. Abadie and gave her permission to visit G.B and lifted restrictions on visiting her father. A February 27, 2018, e-mail from Shelly Wise, Director of Nursing, confirmed this and admitted that the Agency for Health Care Administration had advised that G.B.'s right as a resident to visitors trumped Comprehensive's concerns. Ms. Abadie resumed visiting her friend, G.B. On May 21, 2018, G.B. passed away. G.B. was a lonely, mortally ill man. He initiated a friendship with Ms. Abadie that she reciprocated. Ultimately, he developed unfounded feelings about her being his girlfriend and them having a future together. The clear and convincing evidence does not prove that the relationship was more than a friendship or that it was sexual in any way.
Conclusions For Petitioner: Mary A. Iglehart, Esquire Christina Arzillo Shideler, Esquire Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Department of Health, Board of Respiratory Care, dismiss the Administrative Complaint. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 July, 2019.
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 Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(a); and, if so, the appropriate penalty.
Findings Of Fact Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 320518 to Respondent on December 15, 2014. The Florida Department of Corrections employed Respondent between July 1 and September 30, 2015. Between July 1 and September 30, 2015, the minor child, who was related to Respondent by marriage, resided with Respondent at his residence. Between July 1 and September 30, 2015, the minor child was 12 years of age or older, but younger than 18 years of age. The minor child’s parents each executed documents evidencing their intent that Respondent’s wife, Jessica Emanuel, act as guardian of the minor child. These documents indicated that Ms. Emanuel could enroll the minor child in school, make health care decisions, and make other decisions concerning the minor child’s general welfare. In October 2015, Monica Lange, a case coordinator for the Child Protection Team in the Children’s Advocacy Center, received a referral from the Department of Children and Families in Charlotte County, Florida, concerning the minor child. Ms. Lange testified that she conducted a video interview of the minor child on October 19, 2015, in Fort Myers, Florida (the CPT interview). Ms. Lange credibly testified that when she interviewed the minor victim, the minor victim (who was 17 years old at the time of the interview) did not appear to be impaired, appeared to have the skill set to answer the questions asked, and understood everything that Ms. Lange asked. Ms. Lange also credibly testified that the minor victim understood the concept of being truthful, and was responsive to the questions Ms. Lange asked. The CPT interview revealed the following recollections of the minor victim: Shortly after the minor victim (who was then 16 years old) began living with Respondent and Jessica Emanuel, Respondent and the minor child began consuming alcohol together and engaging in conversations of a sexual nature; Respondent and the minor child thereafter engaged in sexual activity over 30 times in Respondent’s house and truck; The minor child described many of these incidents of sexual activity with detail as to time and location; The minor child stated that Respondent and the minor child engaged in sexual activity with and without a condom; and The minor child stated that the minor child was exposed to a sexually transmitted disease during this time period. After the CPT interview, Ms. Lange contacted Jason Cook, an investigator with the Washington County Sheriff’s Office. Mr. Cook testified that he reviewed the CPT interview, and then called and scheduled appointments with Jessica Emanuel and the minor child’s mother. Based on those interviews, Mr. Cook contacted Respondent, and, on November 2, 2015, interviewed Respondent at Mr. Cook’s office for approximately two hours and 15 minutes. Mr. Cook testified that he provided Respondent with a Miranda warning, informed Respondent that he was not being charged with a crime at that time, and that Respondent was free to leave the interview at any point. The undersigned’s review of the interview confirms Mr. Cook’s testimony. Mr. Cook testified that for the first 40 to 50 minutes of the interview, Respondent’s demeanor was nervous, guarded, and defensive. However, according to Mr. Cook, Respondent later seemed to open up and spoke more freely.2/ Throughout the interview, Respondent stated that he and his wife provided the basic necessities to the minor child, including room and board. Additionally, Respondent stated that the minor child attended school. During the first 40 to 50 minutes of the interview, Mr. Cook testified that when he asked Respondent whether he engaged in sexual activity with the minor child, Respondent stated many times that he was not sure or could not remember. The undersigned reviewed Mr. Cook’s interview of Respondent. During the first approximately 40 minutes of the interview, when Mr. Cook asked Respondent whether he engaged in sexual activities with the minor child, Respondent provided various non-denials of such activity, stating, at various points: he had psychological issues, so he could not give Mr. Cook an honest answer; (b) he did not feel that he had sexual activities with the minor child; (c) he did not know if he had sexual activities with the minor child; (d) he could not believe engaging in sexual activities with the minor child was something he would do; and (e) he did not know if he engaged in sexual activities with the minor child, but it was a possibility. After approximately 40 minutes of the interview, Mr. Cook and Respondent discussed various disciplinary measures Respondent took with the minor child. After this discussion, Respondent stated that he engaged in sexual activities with the minor child. Respondent stated that these allegations were true, and that he was “tired” of trying to remember or think about this subject. Respondent further stated that he did not engage in sexual activities with the minor child more than 30 times, as the minor child reported. Instead, he stated that he engaged in sexual activities with the minor child between 10 and 20 times. Respondent also stated that the local health department prescribed him medication for either an infection or a sexually transmitted disease, but he could not recall which. At multiple times during the interview, Respondent vaguely referred to mental health issues he felt he suffered, including “bipolar schizophrenia.” When pressed by Mr. Cook, Respondent stated that he had not sought treatment for any mental health issues and had essentially self-diagnosed these issues. Respondent has not otherwise presented any evidence of such mental health issues in this proceeding and recanted this self- diagnosis at the final hearing. At the final hearing, Respondent testified that he did not engage in any sexual activity with the minor child. Respondent further stated that if he had engaged in sexual activity with the minor child, he would have been tried and convicted. Respondent testified that the state attorney dropped the charges against him in the criminal case. At the final hearing, Respondent stated that Mr. Cook did not force him to make any statements or admissions during the November 2, 2015, interview. Respondent provided various documents concerning the criminal case demonstrating that the State dismissed criminal charges concerning the same conduct alleged in this proceeding. The undersigned notes that the “Order Dismissing Charges” in the criminal case found that “the State will be unable to prove the charges against the Defendant without the testimony of the alleged victim, and the alleged victim’s testimony has been excluded by the Court because the alleged victim has repeatedly failed to appear for her deposition . . . .” The undersigned also notes that a Subpoena for Telephonic Deposition to be served on the minor victim indicates that the Charlotte County Sheriff’s Office was unable to serve the subpoena, stating, “THIS SUBJECT MOVED OUT IN MARCH, SHE IS HOMELESS LIVING IN THE WOODS SOMEWHERE, NO CONTACT INFORMATION AVAILABLE, WHEREABOUTS UNKNOWN.” The undersigned has considered evidence of the disposition of Respondent’s criminal case in this proceeding. Despite the disposition of the criminal case against Respondent, the undersigned finds that Mr. Cook’s testimony, and the November 2, 2015, interview of Respondent in which Respondent ultimately admits to engaging in sexual activity with the minor child, corroborates the minor victim’s statements in the interview with Ms. Lange that the minor victim engaged in sexual activity with Respondent while Respondent was in a position of familial or custodial authority. The undersigned finds the testimony of Mr. Cook and Ms. Lange to be credible. The undersigned further finds the minor victim’s statements in the CPT interview to be clear, precise, and distinctly remembered. The undersigned further finds that Respondent ultimately admitted to engaging in sexual conduct with the minor victim, as alleged, and that Mr. Cook did not force or coerce Respondent to provide this admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent Taylor L. Landry has failed to maintain the qualifications for good moral character for a correctional officer, established under section 943.13(7), and defined in rule 11B-27.0011(4)(a). It is further RECOMMENDED that Petitioner revoke Respondent Taylor L. Landry’s Corrections Certification No. 320518. DONE AND ENTERED this 24th day of September, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2018
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
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 8th day of June, 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 8th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
