01-000604 Benny Chestnut vs. Department Of Corrections Status: Closed Recommended Order on Friday, February 1, 2002.

Summary: Evidence demonstrated Petitioner did not sexually harass five women at work; therefore, name should be cleared.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNY CHESTNUT, )

)

Petitioner, )

)

vs. ) Case No. 01 - 0604

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 10 and November 28, 2001, in Chipley, Florida, before

the Division of Administrative Hearings by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Patterson and Traynham

Post Office Box 4289

Tallahassee, Florida 32802

For Respondent: R. Beth Atchison, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE IS SUE

The issue to be resolved in this proceeding is whether

Petitioner's name should be cleared.

PRELIMINARY STATEMENT

On July 2, 1999, Petitioner was terminated from his select -

exempt employment position as assistant warden at the Washington

County Correctional Institution. Because Petitioner's

employment was in the select - exempt class, Petitioner was not

told the underlying reasons for his termination nor afforded an

opportunity to contest the termination.

In October 2000, Petitioner learned Respo ndent had reported

to the Criminal Justice Standards and Training Commission

(CJSTC) that the reason for his termination was substantiated

charges of harassment.

On January 24, 2001, based on this information, Petitioner

filed a Petition for Hearing in or der to clear his name of the

charges. The Petition was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and

presented the testimony of 15 witnesses. Petitioner also

offered 13 exhibits into evi dence. Respondent presented the

testimony of 6 witnesses and offered 8 exhibits into evidence.

FINDINGS OF FACT

1. Petitioner, Benny Chestnut, was employed as a

correctional officer in 1985 by the Department of Corrections

(Department) in the Career Se rvice System. He subsequently

obtained permanent status in the classes of Correctional

Officer I, Correctional Officer II, Correctional Officer

Supervisor, Correctional Officer Supervisor I - Lieutenant,

Correctional Officer Supervisor II, Correctional O fficer Major,

Correctional Officer Colonel, and Correctional Officer

Superintendent II.

2. Throughout his career, Petitioner was considered a

satisfactory employee. During his career, his employment record

reflects only two disciplinary actions which oc curred in 1988

and 1989. The 1989 disciplinary action resulted in a 10 - day

suspension.

3. From June 25, 1997 to July 2, 1999, Petitioner served

as assistant warden at the Washington County Correctional

Institution. At that time, he served in the classi fied Career

Service System in the class of Correctional Officer

Superintendent II. Most of Petitioner's career was on the

security side of the institution.

4. In August 1998, Officer Tonya Miller filed a sexual

harassment discrimination complaint agains t Petitioner. The

complaint alleged that Petitioner had subjected her to unfair

treatment by directing her immediate supervisor to keep her

first on call to help with feeding the inmates at 5:00 am. The

complaint was based on double hearsay of what Petit ioner

allegedly said to or instructed another Captain to do regarding

calling correctional officers who lived in institutional

housing.

5. Because of the Miller complaint, an investigation,

No. 98 - 12315, was begun. From September 1998 through March

19 99, various people at the institution, including Miller and

Petitioner, were interviewed by the investigator for the Office

of Inspector General of the Department. The investigation

expanded from the initial Miller complaint to include other

alleged incid ents involving four other women. A written report

of the investigation was completed on April 8, 1999.

6. In 1999, CS/SB 1742, as enacted by the Florida

Legislature, amended Section 110.205(2)(l), Florida Statutes.

The bill transferred the position of Assistant Superintendent II

from career service to select exempt service (SES) and changed

the position title from assistant superintendent to assistant

warden.

7. In general, employees in SES serve at the pleasure of

the agency head and, as such, are subject to dismissal at the

discretion of the agency head. Section 110.604, Florida

Statutes.

8. In the first half of 1999, Petitioner was employed by

Respondent as an Assistant Superintendent II.

9. At some point between April and May 27, 1999, the

D epartment's civil rights review committee met and reviewed the

investigative report. The committee found cause to believe that

Petitioner had sexually harassed the above - referenced women.

10. By letter dated May 27, 1999, Petitioner was formally

notif ied that disciplinary charges were being brought against

him based on the allegations of sexual harassment made by Tonya

Miller, Jareetha French, Lori Whitfield, Tracy Barnes and Pamela

Jackson. Because Petitioner was still employed under career

service, the letter advised Respondent that he had a right to

request a predetermination conference.

11. The next day, Petitioner was notified by letter dated

May 28, 1999, that his position would be transferred from career

service to SES.

12. On June 3, 1999, Pe titioner requested a

predetermination conference on the disciplinary charges being

proposed against him.

13. By letter dated June 16, 1999, Petitioner was

officially appointed by the Department to the position of

assistant warden under the SES system. Also by a separate

letter dated June 16, 1999, Petitioner was advised that the

requested predetermination conference was scheduled for July 1,

1999. The letter advised Petitioner that he could present

relevant information and or affidavits at the predeter mination

conference. The letter states that a final decision on the

disciplinary charges would not be made until after "all the

facts are carefully considered."

14. By letter dated June 21, 1999, Petitioner was advised

that the date for the predetermi nation conference had been

changed from July 1 to July 9, 1999. The letter indicates that

the change in dates was made at the request of Petitioner's

attorney.

15. On or about July 2, 1999, the Department notified

Petitioner that his services as assista nt warden were terminated

as of 5:00 p.m., on July 2, 1999. No reason was stated in the

letter.

16. Because Petitioner had been dismissed under the SES,

Petitioner was not afforded any administrative or evidentiary

hearing on the loss of employment or t he charges of sexual

harassment. The predetermination conference was never held and

no facts were ever finally determined by the Department.

17. On July 23, 1999, the Department completed a

Corrective Action/Disposition Report on Case No. 98 - 12315. The

report reflects that the Department believed there was cause to

believe the alleged sexual harassment/misconduct occurred. Even

though no facts were ever determined by the Department, the

disposition report finds the allegations of sexual harassment

subs tantiated and indicates that Petitioner was terminated on

July 2, 1999.

18. The CJSTC grants to individuals law enforcement

certification and, as such, takes action to revoke an

individual's certification for cause as defined by statute. At

the time of Petitioner's dismissal, he held an auxiliary law

enforcement certification which is equivalent to inactive

certification. Petitioner's certification was auxiliary because

active certification is not necessary in the position of

assistant superintendent or assistant warden.

19. Pursuant to Section 943.139(1) and (2), Florida

Statutes, the Department is required to notify the Public

Employees Relations Commission when an officer has separated

from employment and the reason for that separation.

Petitioner's license was listed on an annual audit of the

Department's employees' CJSTC licensure status. Because of the

audit, Respondent notified CJSTC that Petitioner had been

dismissed for sexual harassment.

20. By letter dated October 25, 2000, from the Crim inal

Justice Professionalism Program of the Florida Department of Law

Enforcement (FDLE), Petitioner was notified that Respondent

reported to the CJSTC that it had disciplined Petitioner by

terminating his employment for the offense of sexual harassment.

Since such misconduct is not the type of conduct for which CJSTC

disciplines a licensee, no action, other than noting the

dismissal and the reason for the dismissal in Petitioner's

record, was taken by CJSTC. These records are reviewed by

potential law en forcement employers. Thus, Petitioner is

subject to harm from this information, if it is incorrect.

21. As indicated, a total of five women "complained" that

Petitioner had sexually harassed them. However, it is unclear

from the evidence or the investiga tive file whether the four

women, other than Tonya Miller, filed any formal complaints

against Petitioner.

22. Many of the complaints centered around invitations to

lunch and parties at a landing close to where Petitioner's

houseboat was docked. The ev idence showed that Petitioner

extended these types of invitations to male and female

co - workers and subordinates. There was no evidence that

Petitioner asked for any sexual favors at any luncheon or

lakeside/houseboat party or that these invitation s were extended

for such a purpose. Indeed, when the invitations are put into

context, they were not extended for any reason other than an

attempt by Petitioner to include most of the people he worked

with in going to lunch or cookouts he was putting on f or the

institution's staff. There was no evidence that Petitioner made

any offensive remarks at any such luncheon or party.

23. The alleged parties/cookouts at the landing were

family affairs. Children were present, spouses attended

together. All the w itnesses testified that Petitioner conducted

himself appropriately at these parties. Occasionally, some

vulgarities occurred at these parties, but these activities were

not attributed to Petitioner. Moreover, these cookouts were not

work - related.

24. T he principal complainant was Tonya Miller.

Ms. Miller is not known to be a credible person. Both, at the

hearing and in her statements to the investigator, Ms. Miller

seemed more interested in airing the alleged complaints of

others, especially th ose of Jareetha French. Ms. French did not

testify at the hearing, and a review of her statement to the

investigator does not contain any facts which would demonstrate

that Petitioner ever sexually harassed Ms. French either on or

off the job.

25. The complaints, as best as could be discerned from the

investigative file, referred to a Christmas party that must have

been held around Christmas of 1995, and an allegedly unsolicited

appearance of Petitioner at a lake where Ms. Miller, Ms. Barnes,

and Ms. Wh itfield were boating or jet skiing. In all instances

the dates of these incidents' occurrences were unclear but

seemed to be old. None of these alleged incidents were

job - related or had any impact on the complainants' employment.

Moreover, like Ms. Miller, neither Whitfield nor Barnes is

considered to be a truthful person.

26. Ms. Miller's initial complaint regarding feeding

inmates was not established by any evidence then or now.

27. The Christmas party incident allegedly occurred when

Petitio ner attended a Christmas party that Miller, Whitfield,

and Barnes were having at their home on the institution's

grounds. Petitioner had been invited to join them for a drink.

All participants at the party were drinking alcohol. Allegedly,

Petitioner ar rived intoxicated and with an allegedly obvious

erection. At some point, Petitioner asked one of the three

women to "come sit on Santa's lap and tell him what she wanted

for Christmas," or words to that effect. Everyone was laughing

and joking with each other and Petitioner left the party.

Afterwards, Miller, Whitfield, and Barnes engaged in a mock

fight on the floor which involved sexually suggestive acts.

28. At the hearing, Ms. Barnes recanted her earlier

statement regarding Petitioner's Santa comm ent and testified

that Petitioner did not make the statement. Ms. Miller

maintained that Petitioner did make the Santa statement.

Petitioner denied he made the statement. The more convincing

evidence is that the statement was not made.

29. Miller and s everal of her friends and, at times

roommates, Lori Whitfield and Tracy Barnes, frequently used

vulgarities such as "MF" and referred to each other as "my

bitch, whore dog, etc." These vulgarities were used in front of

others while they were at work in th e institution. At home, in

the presence of other co - workers, Miller, Whitfield, and Barnes

engaged in play fights involving pretend sexually suggestive

acts. All three women drank alcohol and were known to drink

alcohol in front of others and, themselves , become intoxicated.

All three, both to Petitioner and in referencing Petitioner to

others, referred to Petitioner as Uncle Benny. Whitfield and

Barnes borrowed Petitioner's truck and camping equipment.

Petitioner had no sexual interest in either Mille r, Whitfield or

Barnes. In fact, Whitfield and Barnes maintained a romantic

relationship with each other which Petitioner respected.

30. However, even if Petitioner had made such a statement,

the statement was not work - related and had no impact on any of

these women's employment. Clearly none of these women had been

sexually harassed by or even remotely offended by any comments

Petitioner may or may not have said at their party.

31. Mr. Chestnut's appearance at the lake occurred because

he was asked to attend and provide directions to the lake by

Paul Steverson, a correctional officer who had been invited to

the lake. At the time of the lake visit, Petitioner was

recovering from an operation on his heel. Petitioner came with

Mr. Steverson and sat on the bank while the others played.

Unlike the others, he had no beer to drink. Mr. Steverson heard

no complaint from any of the women about Petitioner's

appearance. Again, as with all the complaints, the evidence did

not demonstrate any conduct on the p art of Petitioner which

constituted sexual harassment.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

action. Section 120.57(1), Florida Statutes, and Amendment 5

and 14 of the U.S. Constitution. See Sickon v. School Board of

Alachua County , 719 So. 2d 360 (Fla. 1st DCA 1998).

33. Petitioner, after learning that the Department had

disseminated information regarding his dismissal, requested this

due process name - clearin g hearing. Petitioner denies that he

sexually harassed the complainants.

34. Discharge from public employment under conditions that

put the employee's reputation, honor, or integrity at stake

gives rise to a liberty interest under the Fourteenth Amendme nt

to the U.S. Constitution to a procedural opportunity to clear

the former employee's name. Board of Regents v. Roth , 408 U.S.

564 (1972); Buxton v. City of Plant City, Florida , 871 F.2d 1037

(11th Cir. 1989); Codd v. Velger , 429 U.S. 624 (1977); and

Bi shop v. Wood , 426 U.S. 341 (1976).

35. In this case, the evidence showed that Petitioner was

discharged for allegedly sexually harassing five women. A

charge of sexual harassment is, by definition, one that impugns

a person's reputation, honor, and int egrity. The evidence also

showed that the Department disseminated information about the

dismissal and the charges in a manner that is likely to become

public when it notified CJSTC of the reason for Petitioner's

dismissal and left the information regardin g the charges in

Petitioner's file.

36. Thus, the complaints, if any are to be justified on

the basis of sexual harassment, must show that Petitioner,

through sexually - oriented conduct, created an intimidating,

offensive, or hostile working environment for Tonya Miller or

others. See Henson v. City of Dundee , 682 F.2d 897 (11th Cir.

1982).

37. In Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57,

106 S. Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court

distinguished between two forms of sexual harassmen t. One is

quid pro quo ; the other is a hostile environment claim that

requires severe or pervasive offensive conduct. The quid pro

quo is not at issue here.

38. In Burlington Industries, Inc. v. Ellerth , ____ U.S.

____, 118 S. Ct. 2257 (1998), Ellerth was subjected to repeated

boorish and offensive remarks and gestures and, in addition, on

three occasions, her supervisor made comments that could be

construed as threats to employment benefits. The conduct lasted

over a 14 - month period of time. Here, th ere is no such incident

on which the employer buttresses its case. The best that can be

said of the testimony of the complainants was that Petitioner's

invitations to lunch or a lake side party hosted by Petitioner

made them feel uncomfortable. None comp lained to him about the

invitations and all seemed to appreciate him, not only by

reference to him as "Uncle", but to use his truck and borrow his

camping equipment. This hardly shows severe and pervasive

offensive conduct.

39. In Faragher v. City of Boca Raton , ___ U.S. ___, 118

S. Ct. 2275 (1998), the Court considered the issue of what

constituted a hostile environment. Ms. Faragher was a lifeguard

for the City of Boca Raton who was subjected to repeated

touching and offensive sexual remarks that demean ed her and

other women. Citing Harris v. Forklift Systems, Inc. , 510

U.S. 17, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993), the Court said

"that in order to be actionable under the statute, a sexually

objectionable environment must be both objectionable and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did

perceive to be so." 118 S. Ct. at 2283.

40. The trier of fact is instructed to look at all the

circumstances, including the frequency of the conduct, its

severity, whether it is physically threatening or humiliating,

whether it interferes with employee work performance, or is a

mere utterance. Id. Simple teasing, off - hand comments, and

isolated incidents may not form the basis of a dis crimination

case.

41. In Oncale v. Sundowner Offshore Services, Inc. , ___

U.S. ___, 118 S. Ct. 998, 1003 (1998), the Court said:

The prohibition of harassment on the basis

of sex requires neither asexuality nor

androgyny in the workplace; it forbids

behavi or so objectively offensive as to

alter the "conditions" of the victim's

employment. "Conduct that is not severe or

pervasive enough to create an objectively

hostile or abusive work environment - an

environment that a reasonable person would

find hostile or abusive - is beyond Title

VII's purview." [Citing Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 21, 114 S.Ct.

367, 370, 126 L.Ed.2d 295 (1993)] We have

always regarded that requirement as crucial,

and as sufficient to ensure that courts and

juries do not mistake socializing in the

workplace - such as male - on - male horseplay

or intersexual flirtation - for

discriminatory "conditions of employment."

42. In this case there is no severe or pervasive sexually

tinged conduct on the part of Petitioner to su pport any finding

of sexual harassment. Moreover, the evidence did not show that

any of the alleged complainants jobs were affected or were

offended by any of Petitioner's conduct.

43. The Department had no cause for the termination of

Petitioner and sho uld not have indicated to either the FDLE or

to the Florida Commission on Human Relations that he was

discharged or, "Terminated for Violation of Chapter 943.13(4),

Florida Statutes, or Violation of Moral Character Standards as

defined by 11B - 27.0011, Flor ida Administrative Code."

RECOMMENDATION

Based upon the following findings of fact and conclusions

of law, it is

RECOMMENDED that a final order be entered by the Respondent

Department of Corrections clearing Petitioner Benny Chestnut's

name and notifying the Florida Department of Law Enforcement

that any reference to substantial sexual harassment charges as

the underlying reason for the termination of Petitioner's

employment be removed from his record.

DONE AND ENTERED this 1st day of February, 2002, in

T allahassee, 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 1st day of February, 2002.

COPIES FURNISHED :

R. Beth Atchison, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee , Florida 32399 - 2500

Ben R. Patterson, Esquire

Patterson and Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

Michael W. Moore, Secretary

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399 - 2500

Lou is A. Vargas, General Counsel

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399 - 6563

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.