01-003466 Sheila Davis vs. Polk County Sheriff`s Office Status: Closed Recommended Order on Monday, September 16, 2002.

Summary: Petitioner failed to establish a prima facie case of discrimination based on her marital status.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3466

)

POLK COUNTY SHERIFF'S OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was pro vided and on February 20, 2002, a formal

hearing was held in this case in Lakeland, Florida. The

authority for conducting the hearing is set forth in Sections

120.569 and 120.57(1), Florida Statutes. The hearing was

conducted by Fred L. Buckine, Administ rative Law Judge.

APPEARANCES

For Petitioner: Michael D. Malfitano, Esquire

David P. Steffen, Esquire

100 West Kennedy Boulevard, Suite 500

Post Office Box 1840

Tampa, Florida 33601 - 1840

David S. Bergdoll, Esquire

455 North Broadway

Bartow, Florida 33830

For Respondent: Sheila Davis, pro se

2458 Chestnut Woods Drive

Lakeland, Florida 33815

STATEMENT OF THE ISSUE

The issue is whether Respondent, Polk County Sheriff's

Office, violated the Florida Civil Rights Act of 1992, as

amended, Section 760.10, Florida Statutes (1993), as alleged in

the Petition for Relief filed by Petitioner, Shelia Davis.

Specifically, Petitioner alleged that Respondent retaliated

against her by using "insubordination" as a cover - up for her

termination for reporting a fellow officer beating a handcuffed

inmate and discriminated ag ainst her because of her marital

status.

PRELIMINARY STATEMENT

On October 7, 1998, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) charging Respondent with discrimination based on her

marital status. By le tter dated July 20, 2001, FCHR informed

Petitioner of its determination of no cause, and advised

Petitioner of the right to request a de novo administrative

hearing by filing a petition for relief within 35 days of

July 20, 2001. Petitioner timely filed a Petition for Relief

that was transmitted to the Division of Administrative Hearings

on August 31, 2001.

On September 13, 2001, a Notice of Hearing scheduling the

final hearing for November 14 and 15, 2001, in Lakeland,

Florida, was entered. On Septembe r 24, 2001, Respondent filed

an Answer, and on September 27, 2001, a Notice of Ex - Parte

Communication was issued to Petitioner.

On October 25, 2001, Respondent's Witness List was filed,

and on November 1, 2001, Respondent's Motion to Dismiss was

filed. On November 2, 2001, Petitioner's letter requesting

denial of Respondent's Motion to Dismiss was filed. On

November 5, 2001, Respondent's Amended Motion to Dismiss was

filed. On November 9, 2001, a telephone conference was held on

Respondent's Amended Mot ion to Dismiss. On November 9, 2001, an

Order Granting Continuance and Placing Case in Abeyance with

instructions to advise of status no later than November 30,

2001, was entered. On November 26, 2001, an Order denying

Respondent's Amended Motion to Dism iss was entered.

On December 10 and 17, 2001, respectively, Petitioner and

Respondent filed responses to the order of abeyance with

suggested final hearing dates. On December 18, 2001, a Notice

of Hearing scheduling the final hearing for February 20 and 2 1,

2002, and an Order of Pre - Hearing Instructions were issued.

At the final hearing, Petitioner appeared pro se .

Petitioner testified in her own behalf and presented the

testimony of four witnesses: Lisa Sheffield, Nina Gaitor,

Philip Petote, and Gloria Willis, all employees of Respondent.

Petitioner's 12 exhibits (P - 1 through P - 12) were received in

evidence. Respondent presented the testimony of five witnesses:

Willie Hall, Susan Newton, Gloria Blackwelder, Tommy Lee

Cockroft, and Robbie Coulter, all employees of Respondent.

Respondent's 11 exhibits (R - 1 through R - 11) were received in

evidence.

At the final hearing, the parties requested 20 days after

the filing of the transcript of this proceeding to file proposed

recommended orders. The motion was granted.

On March 8, 2002, a Transcript of this proceeding was

filed. Petitioner and Respondent filed their Proposed

Recommended Orders on March 11 and 28, 2002, respectively. The

proposals were considered in this Recommended Order.

On May 3, 2002, the u ndersigned issued an order, sua

sponte , requiring Respondent to submit a copy of Petitioner's

Fitness for Duty evaluation (identified as Court Exhibit "A") 1

preformed by Dr. C. McDonald, on or about January 16, 1998, with

a copy provided to Petitioner, pur suant to Rule 28 - 106.211,

Florida Administrative Code. The parties were given June 3, 4,

or 5, 2002, as possible dates for continuation of this cause to

hear testimony regarding the evaluation report, if either party

elected to do so. On May 28, 2002, a Notice of Hearing

scheduling the hearing on the evaluation report for June 7,

2002, was entered.

On June 4, 2002, Respondent filed a Motion to Continue the

June 7, 2002, hearing. A letter from Petitioner requesting a

continuance of the June 7, 2002, hear ing was filed on June 5,

2002.

On August 2 and 9, 2002, Respondent filed a Motion for

Dismissal of the Petition for Relief, and Petitioner filed a

letter requesting Respondent's motion be denied, respectively.

The motion for continuance was denied, and th e undersigned

considered the evaluation report in preparation of this

Recommended Order without testimony from the parties.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor

while testifying, the documentary materials received in

evidence, and the entire record compiled herein, the following

evidentiary, relevant, material and ultimate facts are

determined.

1. Respondent, Polk County Sheriff's Office (Sheriff), at

all times material to this cause, was an "employer" as that term

is defined under Florida Civil Rights Act of 1992, as amended,

Section 760.02(7), Florida Statutes.

2. Petitioner, Shelia Davis (Ms. Davis), at all times

material to this cause, was an "aggrieved person" as that term

is defined under Florida Civil Rights Act of 1992, as amended,

Section 760.02(10), Florida Statutes.

3. Ms. Davis alleges in her Petition that on May 29, 1998,

the Sheriff terminated her in retaliation for her preparing an

incident report on January 3, 1998. Ms. Davis also alleged that

her termination was also because of her marital status, in

violation of the Florida Civil Rights Act (Act), Chapter 760.10

Florida Statutes.

4. In 1994, Ms. Davis was hired by the Sheriff as a Book -

In Clerk and remained employed by the Sheriff until her

ter mination on May 29, 1998.

5. While employed by the Sheriff, Ms. Davis married

Curtis C. Young (Young) in 1997, in Pasco County. Ms. Davis and

Young subsequently divorced at some point in time before

April 1998.

6. In December 1997, the Sheriff initiat ed an

administrative investigation into allegations that Ms. Davis was

passing confidential information about inmates to her then

husband, Young. The administrative investigation continued

through April 1998.

7. On January 3, 1998, while on duty Ms. Davi s observed

and reported to Sergeant Petote an incident of Officer Sanders

allegedly beating a handcuffed inmate. Sergeant Marshall,

Ms. Davis' supervisor at that time, was made aware of the

reported incident, and he made jokes of the use of the slang

ter m "Jacked Up" used by Ms. Davis in her report to Sergeant

Petote.

8. The following day, January 4, 1998, Ms Davis was

working in the Booking Area information desk. During her tour

of duty, Ms. Davis got into an argument with a civilian. After

a discussi on between Ms. Davis and Sergeant Marshall, he

relieved Ms. Davis of duty in the Booking Area and reassigned

her to duty in the control tower. From the testimony of the

conversation between the two, tension became evident. As a

result, Sergeant Marshall reported Ms. Davis as being

"insubordinate," relieved Ms. Davis from duty, and sent her home

for the remainder of the night shift.

9. The above incident was reported to Lieutenant Tom

Cockroft who instructed Sergeant Marshall to suspend Ms. Davis

for the remainder of the January 4, 1998, tour of duty. Upon

informing Ms. Davis of her suspension, another argument ensued

between Ms. Davis and Sergeant Marshall.

10. On January 5, 1998, based on the report by Sergeant

Marshall and the concurrence of Lieutenan t Cockroft, Ms. Davis

was charged with violating the Sheriff's General Orders G.O.

26.1.E.,8.,a (Respect Toward Supervisors);

G.O. 26.8.,b.,2. (Abusiveness); and G.O. 26.1. E.,8.,d.

(Compliance and Execution of Lawful Orders).

11. Ms. Davis, at some time prior to January 1998, began

to participate in the Polk County Crime Stoppers, a program

designed to permit civilians to report known and suspected

criminals and criminal activities. It was the policy of Crime

Stoppers to give monetary rewards to those p ersons whose

information and tips resulted in or assisted in the arrest of

persons committing or who had committed criminal acts.

12. Ms. Davis became aware that her ex - husband, Young, may

have been incarcerated in the Pinellas County Jail under an

alias. Sometime during the month of April 1998,

Ms. Davis contacted the Pinellas County Sheriff's Office and

related that she may have information regarding an inmate jailed

under an alias, i.e. her ex - husband, Young.

13. Upon becoming aware that Ms. Davis w as an employee of

the Sheriff, Lieutenant Jacobs of the Pinellas County Sheriff's

Office advised Ms. Davis to work through the Sheriff and not

directly with the Pinellas County Sheriff's Office in the

future.

14. The Pinellas County Sheriff's Office infor med the

Sheriff of Ms. Davis' contact, and Lieutenant Blackwelder, of

the Sheriff's Administrative Investigation Department, engaged

in a joint effort to confirm the identification of the Pinellas

County Jail inmate, believed to be Young. Lieutenant

Blac kwelder ordered Ms. Davis to cease calling the Pinellas

County Sheriff's Office regarding Young. At this meeting an

argument ensued.

15. Subsequent to the above meeting with Lieutenant

Blackwelder and the order to discontinue interference with the

invest igation by the Pinellas County Sheriff's Office, Ms. Davis

telephoned the Pinellas County Sheriff's Office regarding Young

for the intended purpose of collecting a Crime Stoppers reward.

Ms. Davis acknowledged making contact via her cell phone on her

off - duty hours with the Pinellas County Sheriff's Office after

being ordered by Lieutenant Blackwelder to cease all contact.

This course of conduct resulted in an allegation that Ms. Davis

violated G.O. 26.1.E.,8.,d. (Compliance and Execution of Lawful

Orders ) and G.O. 26.1.E.,8.,a. (Respect Toward Supervisors). On

or about April 22, 1998, Lieutenant Cockroft suspended

Ms. Davis with pay for the violations hereinabove.

16. In May 1998, a pre - disciplinary hearing regarding the

above - cited charges was held, and all charges were sustained

resulting in termination of Ms. Davis' employment with the

Sheriff on May 29, 1998.

17. Ms. Davis filed a discrimination complaint with FCHR

in October 1998, and in 1999, FCHR informed Ms. Davis that her

complaint was unsubs tantiated.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

19. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment because of s uch

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

20. FCHR and the Florida courts have determined that

federal discrimination law should be used as a guidance when

construing provisions of Section 760.10, Flo rida Statutes.

Florida Department of Community Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

21. The United States Supreme Court established in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973) and

Texas Department of Community Affair s v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII, which is persuasive in cases such as that at

bar, as reiterated and refined in the case of St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993).

2 2. This analysis illustrates that a petitioner has the

burden of establishing, by a preponderance of evidence, a prima

facie case of discrimination. If that prima facie case is

established, the defending respondent must articulate a

legitimate, non - discr iminatory reason for the action taken

against the petitioner. The burden then shifts back to the

petitioner to go forward with evidence to demonstrate that the

offered reason is merely a pretext for unlawful discrimination.

The Supreme Court stated in Hi cks , before finding discrimination

in that case, that:

[T]he fact finder must believe the

plaintiff's explanation of intentional

discrimination.

509 U.S. at 519.

23. In the Hicks case, the Court stressed that even if the

fact finder does not believe the proffered reason given by the

employer, the burden remains with the petitioner to demonstrate

a discriminatory motive for the adverse employment action taken

even if the court or the fact finder does not believe the

employer's explanation for the reason.

2 4. In order to establish a prima facie case, Petitioner

must establish that she is a member of a protected group; that

she is qualified for the position in question; that she was

actually subjected to an adverse employment decision; that she

was treated l ess favorably than similarly situated persons

outside her protected class; and that there is some causal

connection between her membership in the protected group and the

adverse employment decision that was made. See Canino v.

U.S., E.E.O.C. , 707 F.2d 46 8 (11th Cir. 1983); and Smith v.

Georgia ,. 684 F.2d 729 (11th Cir. 1982).

25. Here, Petitioner alleges the following adverse and

discriminatory employment actions:

(1) I was constantly harassed and

slandered face to face and/or in incident

reports by supervisors and other employees.

When I wrote an incident report and/or filed

a grievance (internally) I was terminated on

May 29, 1998.

(2) Retaliated against me by using

"insubordination" as a cover - up to terminate

me, because I reported an officer beating an

inmate while inmate was handcuffed.

(3) I believe I was discriminated against

because of Retaliation and Marital status

for the following reasons: (a) I observed a

correctional officer abuse an inmate that

was handcuffed. Inmate was physic ally

beaten and bruised. I was told to submit an

incident report. The next night a Book - in

Sergeant wrote me up, accusing me of being

insubordinate for not working the control

tower and this is untrue; (b) When an

anonymous caller [using] an alias calle d the

Sheriff office and gave a false statement

that I was giving away inmates' social

security [numbers] and date of births to my

ex - husband and he was creating false bank

accounts with the information.

(4) I was charged with association with

criminal s all because of the false

allegation that was brought up. Charges

were sustained and should have been

exonerated with the rest of the other

charges. Although my husband at the time is

now my ex - husband, has a criminal record,

the sheriff's office knew t hat I was married

to him a whole year almost before the false

accusation was brought up, but because of

the false accusation, I was charged with

association with criminals and charge

sustained.

(5) I was in the process of receiving an

award or reward f rom Crime Stoppers for

capturing my ex - husband, when I notified

internal affairs of what I was doing, the

inspector for internal affairs would not

advise her Lieutenant that I was giving her

leads of information and that I was involved

with Crime Stoppers. The inspector

retaliated against me by misleading her

lieutenant to believe I was interfering with

an investigation of internal affairs, when

internal affairs did not know anything about

the leads that I was giving them. Also, the

inspector led her lieu tenant to believe that

I was on company time when she knew that I

was home. I was suspended with pay, then

terminated. Grievances were filed on

internal affairs before I was terminated.

26. In the case at bar, there is no evidence that

Respondent termi nated Petitioner because of and or related to

her marital status (during her marriage to a convicted felon

and/or after her divorce from Young), but was specifically due

to her insubordination toward her immediate supervisors and

other superior officers. See National Indus., Inc. v.

Commission on Human Relations , 527 So. 2d 894 (Fla. 5th DCA

1988).

27. Assuming arguendo that Petitioner's above - stated

allegations were, in fact, true, she has also failed to

demonstrate that "adverse employment actions were the direct

consequence" of her termination.

28. The record in this case clearly demonstrates that

Petitioner was repeatedly argumentative and thus insubordinate

to her supervisors and superiors.

29. Petitioner, Shelia Davis, has failed to establish, by

a preponderance of the evidence, a prima facie case of

discrimination by Respondent, Polk County Sheriff's Office.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law

hereinabove, it is

RECOMMENDED that the Florida Commission on Human Rel ations

issue a final order DISMISSING Petitioner's discrimination

complaint herein filed.

DONE AND ENTERED this 16th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of September, 2002.

ENDNOTE

1/ Respondent, during its criminal investigation of Petitioner,

required her to take a "Fitness for Duty" evaluation. This

psychological evaluation was referred to in the evidence and

testimony but not prov ided. The order required Respondent to

provide a copy of the evaluation, and the parties were given an

opportunity to provide testimony regarding this report, if

desired.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relat ions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Sheila Davis

2458 Chestnut Woods Drive

Lakeland, Florida 33815

Michael D. Malfitano, Esquire

David P. Steffen, Esquire

100 West Kennedy Boulevard, Suite 500

Post Office Box 1840

Tampa, F lorida 33601 - 1840

David S. Bergdoll, Esquire

455 North Broadway

Bartow, Florida 33830

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.