03-000950 Kenneth Davis vs. Pinellas County Sheriff`s Office Status: Closed Recommended Order on Wednesday, August 20, 2003.

Summary: Sheriff`s Office`s Administrative Review Board suspended, transferred, and reduced rank of deputy Petitioner for alleged sexual harassment of co-worker. Sheriff failed to carry burden of proof. Recommend Petitioner be restored to previous rank and duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0950

)

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Sections 120.569

and 120.57(1), Florida Statutes, a formal hearing was held in

this case, on May 16, 2003, in St. Petersburg, Florida, before

Fred L. Buckine, the designated Administrative Law Judge of the

Division of Administ rative Hearings.

APPEARANCES

For Petitioner: William M. Laubach, Esquire

Pinellas County Police Benevolent

Association

14450 46th Street, North, Suite 115

Clearwater , Florida 33762

For Respondent: Keith C. Tischler, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues for deter mination are whether Petitioner,

Kenneth Davis, made sexually harassing statements and made body

contact with a female counselor so as to constitute sexual

harassment and a hostile work environment, in violation of

Pinellas County Sheriff Office Civil Serv ice Act and the rules

and regulations of the Pinellas County Sheriff's Office, and, if

so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On March 10, 2003, Respondent, Sheriff Everett S. Rice,

notified Petitioner, Detention Deputy Kenneth Davis, t hat the

Administrative Review Board had determined that Petitioner had

violated the Pinellas County Sheriff Office Civil Service Act

and the rules and regulations of the Pinellas County Sheriff's

Office. As the result of the Administrative Review Board's

determination, Respondent notified Petitioner that he was

suspended ten days without pay and demoted from the rank of

detention corporal to the rank of detention deputy. Petitioner

denied the charges, contested the imposed penalty, and requested

a formal hearing.

On March 19, 2003, Petitioner's notice of appeal from the

above disciplinary action and request for a hearing was referred

to the Division of Administrative Hearings.

On March 28, 2003, a Notice of Hearing, scheduling the

final hearing for May 6 , 2003, in St. Petersburg, Florida, was

entered. On March 31, 2003, an Amended Notice of Hearing,

rescheduling the final hearing for May 1 and 2, 2003, was

entered.

On April 15, 2003, an Order was entered granting a

continuance and rescheduling the final hearing for May 16, 2003.

On April 22, 2003, Respondent's Disclosure Pursuant to Section

120.57(1)(d), Florida Statutes, was filed.

On May 2, 2003, Respondent's Motion in Limine was filed,

and on May 5, 2003, a (Joint) Pre - Hearing Stipulation was filed.

On May 8, 2003, a telephonic case status conference was held.

The hearing was held on May 16, 2003. At the hearing,

Petitioner testified on his own behalf and also presented the

testimony of one witness, Detention Deputy Herman Hartfield,

Petitioner's co - worker, and introduced one exhibit (PBA - A) into

evidence. Respondent presented the testimony of five witnesses:

Lori Atwater (sexual harassment complainant), an inmate

counselor; Jacqueline Hobbs, program service supervisor;

Detention Deputy Peggy Hender son, Petitioner's co - worker;

Detention Deputy Linda Miller, Petitioner's co - worker; and Major

Kirk Bruner, Detention and Correction Bureau commander and

Petitioner's chain - of - command superior officer. Respondent

introduced 15 exhibits (R - 1 through R - 15) t hat were accepted

into evidence; Respondent's exhibits R - 13 and R - 14 were

withdrawn. The parties submitted the Pinellas County Sheriff's

Office's Administrative Review Board Complaint Determination as

a joint exhibit (J - 1) that was accepted into evidence.

On May 22, 2003, a two - volume Transcript was filed.

On June 2, 2003, the parties filed a joint motion for an

extension of time to submit proposed recommended orders, and by

Order of the same date, the parties' motion was granted,

extending the filing date until July 15, 2003, thereby waiving

the time requirement for this Recommended Order. See Rule 28 -

106.216, Florida Administrative Code.

Respondent and Petitioner filed proposed recommended orders

and memoranda of law on July 14 and 16, 2003, respectively , and

they have been considered by the undersigned in preparation of

this Recommended Order. (All statutory references are to

Florida Statutes (2003) unless otherwise stated.)

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor

whi le testifying in person and the documentary materials

received in evidence, stipulations by the parties, evidentiary

rulings made pursuant to Section 120.57, Florida Statutes, and

the entire record compiled herein, the following relevant and

material facts are found:

1. Respondent, Sheriff Everett S. Rice (Sheriff), is a

constitutional officer of the State of Florida, responsible for

providing law enforcement and correctional services within the

geographic boundaries of Pinellas County, Florida.

2. Petiti oner, Detention Deputy Kenneth Davis (Deputy

Davis), is a 23 - year employee with the Pinellas County Sheriff's

Office, having spent his entire career as a detention officer.

As a result of years of training and experience, Deputy Davis is

intimately famili ar with the Sheriff's policy regarding sexual

harassment, detention policies, operations, procedures, and the

priority of security applicable to detention deputies.

3. The evidence demonstrates that in the collective

opinions of those detention deputies w ho worked longest with

Deputy Davis, all agreed that his personality was that of one

who "[was] loud and obnoxious -- to pretty much everybody,"

"play[ed] around a lot," "never insulted anybody," and "[didn't]

mean any harm."

4. At all times pertinent to th is cause, Deputy Davis held

the rank of detention corporal until the Sheriff reduced his

rank to Deputy and removed him from his position of detention

corporal on March 10, 2003. Deputy Davis' chain - of - command

consisted of Major Kirk Brunner, Detention an d Correction Bureau

commander; Captain Nesbitt; Lieutenant Keith George; and

Sergeant Buckingham. Deputy Davis did not have authority over

Lori Atwater (Ms. Atwater), the complainant in this cause. He

was not in her chain - of - command nor was he one of her bosses in

the sense that he could assign her tasks.

5. At all times pertinent to this cause, Deputy Davis

worked in detention barrack C, North Division. Barrack C is a

two - storied structure divided into B block and C block, with

each cellblock divided i nto an upper level and lower level.

Deputy Davis had four deputies under his supervision in

cellblock C.

6. At all times pertinent to this cause, Control Deputy

Salazar worked the control center at barrack C. The control

deputy is stationed in a glassed enclosure with clear view of

individuals desiring entrance into the waiting room of barrack C

and with clear view of inmates desiring to leave the cellblock

and enter the waiting room.

7. On or about March 4, 2002, Ms. Atwater, an African -

American and a long - time resident of St. Petersburg, Florida,

commenced employment with the Pinellas County Sheriff's Office

as an inmate - counselor. Ms. Atwater has an Associate of Science

degree in Computer Technology Engineering and a Bachelor of

Science degree in Man agement Information Systems. Her inmate -

counselor duties consisted of identifying inmates who had

family, legal, and personal issues requiring her intervention.

The Department of Children and Family Services (DCFS) employed

Ms. Atwater for ten years befo re she began employment with the

Pinellas County Sheriff's Office. While employed with DCFS, she

worked in food stamps, Medicaid, protective services, adoptions,

and several community recruitment programs. DCFS also has a

policy against sexual harassment .

8. The Sheriff has adopted Pinellas County Sheriff's

Office General Order 3 - 4, which defines and prohibits sexual

harassment. Pursuant to General Order 3 - 4, sexual harassment is

defined as:

1. All unwelcome or unwanted advances;

including sexual adv ances or unwanted sexual

attention, whether between person(s) of the

opposite or same sex. This includes, but is

not limited to, leering, touching, patting,

brushing against, hugging, kissing,

fondling, any other similar physical

contact, or quid pro quo arrangements (i.e.,

a situation in which an employee is forced

to engage in unwelcomed sexual conduct in

order to protect or advance his/her job.)

2. Unwelcome requests or demands for

favors, including sexual favors. This

consists of subtle or blatan t expectations,

pressures, or request for any type of favor,

including sexual favor, including unwelcome

requests for dates, whether or not the

request is accompanied by an implied or

stated promise of preferential treatment or

negative consequences.

3. Inappropriate third party comments or

one time comments made which do not

constitute a hostile work environment,

language not directed at the offended

member, jokes (spoken, printed or drawn)

that are not directed at the offended member

or joint banter of a sexual or offensive

nature in which the offended member may or

may not be a party.

All employees of the Sheriff, including Deputy Davis and

Ms. Atwater, received instructions regarding the Sheriff's

Sexual Harassment Policy.

9. The evidence demonst rates that beginning in March of

2002 and continuing through the months of April and May 2002,

Ms. Atwater noticed, without telling him to stop and without

reporting her resulting complaint to her supervisor, that

Lieutenant George would call her "Ms. Ashw ood." At some

unspecified time prior to March of 2002, Ms. Atwater concluded

that the name "Ms. Ashwood" was offensive. Ms. Atwater based

her conclusion on her interpretation and knowledge of the

general reputation of a Ms. Ashwood (no first name given) within

the African - American community of St. Petersburg. According to

Ms. Atwater, Ms. Ashwood was known throughout the African -

American community for engaging in sexual encounters with

multiple partners.

10. As a direct result of her superior, Lieutenan t George,

continuously calling her Ms. Ashwood, a name she considered to

be sexually offensive, Ms. Atwater chose not to report her

sexual harassment complaint against Lieutenant George through

the proper protocol. The record contains no evidence that

Ms . Atwater asked Lieutenant George what was his intended

meaning by calling her Ms. Ashwood. The evidence demonstrates

that Lieutenant George, having been involved in both the hiring

of Ms. Atwater as well as involved in her performance

evaluation, knew he r name to be Ms. Atwater.

Alleged statements made by Deputy Davis to Ms. Atwater in the

cafeteria during a lunch period.

11. The evidence demonstrated that Ms. Atwater and Deputy

Davis initially enjoyed a rather cordial relationship at work

during the pe riod of March through May 2002, at least by outward

appearances. Deputy Davis and Ms. Atwater both attended read -

off sessions; on occasions, they walked together from the read -

off sessions back to barrack A; and on two separate occasions,

they were seated at the same table in the compound's buffet -

styled cafeteria. They did not have contact with each other

beyond what was necessary in the performance of their respective

duties. They did not have contact with each other outside the

workplace.

12. On some unspecified date during lunch in the compound

cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant

George kept calling her Ms. Ashwood. According to Ms. Atwater,

Deputy Davis came over to the table where she sat and she

allegedly initiated the following conversation:

Atwater: I really don't appreciate that,

him [Lieutenant George] calling me

Ms. Ashwood.

Davis: He's probably P - U - S - S - Y whipped and

you probably remind him of her.

Atwater: He just alluded to -- and used the

term inside whore.

Atwater: What's an inside whore?

Davis: That's when you sleep with someone

that makes Decisions for your career.

Atwater: If I ever get promoted around here

it will not be because I've slept with

anybody, but based on my own merits.

13. At the fi nal hearing, Deputy Davis denied the

allegations regarding the above statements attributed to him by

Ms. Atwater. Thus, the evidence is irreconcilably in conflict

as to whether Deputy Davis made those statements attributed to

him with the intent of sexual ly harassing Ms. Atwater, and if

the statements were, in fact, made, whether his answers were

truthful responses to her question.

14. The compound cafeteria has several long tables seating

six to eight persons and several shorter tables seating four to

si x persons. It is significant that not a single witness, from

among others who were seated at the same table with Ms. Atwater

and Deputy Davis in the cafeteria on that unspecified day, was

called to corroborate the statements allegedly made by Deputy

Davis to Ms. Atwater. With knowledge of the Sheriff's sexual

harassment policy coupled with her prior knowledge of DCFS's

similar sexual harassment policy, and having been highly

offended by Deputy Davis' conversation, it is significant that

Ms. Atwater, whos e counseling job included accurate record

keeping, made no attempt to record this first incident with

Deputy Davis resulting from repeated incidents with Lieutenant

George. Additionally, Ms. Atwater chose not to follow protocol

and report to her immediate supervisor her complaint of sexual

harassment by a relatively new co - worker.

15. Having carefully weighed and evaluated all the

relevant, persuasive, and credible evidence, the undersigned is

unable to find that Ms. Atwater's testimony is superior in

wei ght and quantity, thus proving by a preponderance of the

evidence that Deputy Davis made unwelcome or unwanted sexual

comments or advances and/or unwelcome unwanted sexual demands,

nor created a hostile work environment as Ms. Atwater has

accused him. Thi s determination reflects the fact finder's

judgment concerning the weight of the evidence and nothing more;

it is not a finding regarding what was said or not said by

Ms. Atwater or by Deputy Davis during the alleged conversation

that took place on some u nspecified date in the compound

cafeteria.

Alleged intentional body contact by Deputy Davis with

Ms. Atwater in the cafeteria buffet serving line.

16. Ms. Atwater further testified that on another

unspecified day while she was in the cafeteria buffet s erving

line fixing her salad, she felt "a brazen -- it felt maybe like

his [Deputy Davis] radio or something - it was hard -- and then he

went in my ear 'boo.' It made me jumpy and I made a squealing

noise - because I didn't expect anything to braze in the back o n

my ---- ." Continuing, Ms. Atwater testified that Lieutenant

George came in the cafeteria at that time, and she asked him

"why don't you tell your friend to just cut it out?" The

Sheriff did not call Lieutenant George to testify. No other

witness testif ied to corroborate Ms. Atwater's statements.

Deputy Davis denied this second allegation of intentionally

making body contact with Ms. Atwater and speaking in her ear.

17. Having carefully weighed and evaluated all the

relevant, persuasive, and credible e vidence, the undersigned is

unable to find that Ms. Atwater's testimony is superior in

weight and quantity and that Deputy Davis engaged in the conduct

of which Ms. Atwater has accused him. This determination

reflects the fact finder's judgment concerning the weight of the

evidence and nothing more; it is not a finding regarding what

occurred or did not occur on that unspecified date between

Deputy Davis and Ms. Atwater in the buffet serving line in the

compound cafeteria.

18. It is significant that Ms. A twater, whose counseling

job required accurate and detailed daily record keeping, made no

record of Deputy Davis' second alleged sexual harassment of her

person. With firsthand knowledge of the Sheriff's sexual

harassment policy plus her ten - year experien ce with a similar

sexual harassment policy during her employment with DCFS,

Ms. Atwater chose again not to follow proper protocol. She

chose not to properly report this second incident to her

immediate supervisor. Her second decided refusal to report wh at

she considered sexual harassment by the same co - worker is not a

defense, if Deputy Davis was guilty of such conduct, and does

not absolve him from liability. Having chosen for the second

consecutive occasion not to report the alleged sexual harassment

by Deputy Davis does present a significant impediment regarding

Ms. Atwater's memory, recall, and credibility.

Alleged repeated harassing comments by Deputy Davis resulting

from Ms. Atwater's frightened squealing.

19. Concluding, Ms. Atwater testified th at "for months"

after the undated cafeteria serving line incident, "every time"

she would see Deputy Davis (minimum twice a week in barrack C)

he would repeatedly come behind her and say -- "Ewwww, counselor,"

and "Counselor, I want to see you." According t o her, these

statements allegedly resulted from the cafeteria serving line

incident and from a subsequent work related discussion and

disagreement between Deputy Davis and Ms. Atwater regarding the

form "62" (a form used by inmates requesting to see the

co unselor). Ms. Atwater, when confronted with what she

considered a third but continuing sexual harassment by Deputy

Davis, again chose not to follow protocol and report this third

incident to her supervisor. It is significant that according to

Ms. Atwater , she was initially and had been continuously

sexually offended by Lieutenant George calling her Ms. Ashwood.

When she inquired of Deputy Davis why Lieutenant George called

her Ms. Ashwood, she was again sexually offended by his alleged

answer to her ques tion. She turns then to Lieutenant George,

who was continually sexual harassing her and (did not ask him to

stop calling her Ms. Ashwood) asks his assistance (not to file a

proper complaint) but to have Deputy Davis (whose answer to her

question about Lie utenant George she considered sexual

harassment) to "just knock it off."

20. Regarding her third alleged sexual harassment

complaint against Deputy Davis (Ms. Atwater with knowledge that

Lieutenant George and Deputy Davis were friends and she

admittedly i ntended to take advantage of their friendship), she

went to Lieutenant George, who (1) had continuously called her

Ms. Ashwood; (2) was in her chain - of - command; and (3) was also

in Deputy Davis' chain - of - command (but not file a complaint

against Deputy Dav is) and asked if he would "talk to his friend

[Deputy Davis] -- I don't want to make waves over this - I don't

want to make a big to do - if you could talk to him -- just have him

knock it off." At the final hearing, Deputy Davis denied her

third allegation that he would repeatedly come behind her and

say -- "Ewwww, counselor," and "Counselor, I want to see you." It

is significant that after months and three separate allegations

of sexual harassment by Deputy Davis, Ms. Atwater chose not to

follow protocol and make a sexual harassment complaint against

Deputy Davis to Lieutenant George, who would have been obligated

to initiate a formal investigation. She chose instead to ask a

favor from one who had continuously called her the sexually

harassing name of Ms. Ashwoo d.

21. The evidence is irreconcilably in conflict as to

whether Deputy Davis continually made the alleged sexual and

harassing comments to Ms. Atwater during an unspecified number

of months. The Sheriff presented no witness to corroborate Ms.

Atwater's a llegations on this issue. Lieutenant George was not

called to testify, leaving Ms. Atwater's hearsay testimony

regarding this particular issue without corroboration. For the

third time, Ms. Atwater chose to not follow protocol and report

her third sexual harassment incident. The fact finder

acknowledges that her third decided refusal to report sexual

harassment by the same co - worker is not a defense, if he were

guilty of such conduct, and does not absolve Deputy Davis from

liability. Her choosing a thir d time not to report the alleged

sexual harassment by Deputy Davis to her immediate supervisor

does present a significant obstacle in the evaluation of

Ms. Atwater's credibility.

22. Having carefully weighed and evaluated all the

relevant, persuasive, an d credible evidence, the undersigned is

unable to find that Ms. Atwater's testimony is superior in

weight and quantity that Deputy Davis for months engaged in the

conduct of which Ms. Atwater has accused him. This

determination reflects the fact finder's judgment concerning the

weight of the evidence and nothing more; it is not a finding

regarding what occurred or did not occur during unspecified

months when Deputy Davis may have been in the presence of

Ms. Atwater.

Allegations that Deputy Davis intention ally delayed or caused

delay of inmates desiring conference with Ms. Atwater.

23. Regarding her final allegation of sexual harassment by

retaliation against Deputy Davis, Ms. Atwater recalled that on

one occasion, Deputy Davis intentionally caused a "two - hour"

delay in getting inmates on her list from their cells to the

conference area where she awaited them. The purported intent of

this alleged two - hour delay was to threaten or to produce a

negative consequence regarding Ms. Atwater's performance of her

duties.

24. I find that Ms. Atwater's August 9, 2002, memo to her

supervisor, Deputy Armsheimer, purporting to be a chronology of

events that occurred on August 8, 2002, conclusively

demonstrates that Deputy Davis was not the cause, directly or

indirectly , for Ms. Atwater's two - hour delay in getting the two

inmates she had requested.

25. The evidence demonstrates that Ms. Atwater gave her

form "62" list (inmates to be pulled who had requested a

conference with her) to the control deputy, Deputy Salazar, i n

barrack C and waited 40 minutes. Returning to the holding area

and inquiring as to the whereabouts of her inmates, Deputy Davis

and not Deputy Salazar informed Ms. Atwater that the top three

inmates on her list were not there. Ms. Atwater asked Deputy

Davis of the inmates' whereabouts, but he gave her no further

explanation. Ms. Atwater thereafter called Deputy Hartfield,

who is in her chain - of - command, to ask if he would look into the

matter and Deputy Hartfield promised to get back to her.

Ms. Atwa ter waited for Deputy Hartfield's return call. After

waiting an unspecified period of time and not receiving Deputy

Hartfield's returned message, she called Deputy Hartfield a

second time and was told that he had relayed his message to

control (Deputy Sal azar) about one and one - half hours ago. In

that message, Deputy Hartfield explained that her first

requested inmate (no name given) had been moved to maximum

security and her second inmate (Brandon) was written up earlier

that morning by him. In her Augu st 9, 2002, memo to Deputy

Armsheimer, Ms. Atwater wrote, "the conversation concluded with

me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago,

I would have just left out of here and could have eaten lunch."

26. It is significant that Ms. Atwa ter authored her

August 9, 2002, memorandum to Deputy Armsheimer, for the

singular purpose of explaining the exact cause (and persons

involved) of her two - hour plus wait for inmates who were not

pulled for her. At the final hearing in May 2003, she

contr adicts her August 9, 2002, written statements by testifying

that Deputy Davis caused her a "two - hour" delay in pulling her

inmates. This obvious contradiction is a severe detriment upon

her credibility.

27. Ms. Atwater's memorandum to Sergeant Groff, dat ed

October 30, 2002, was written to give a recount of her

experiences with Deputy Davis during all times pertinent to this

case. She began her memorandum with the statement: "[S]o for

the whole story to be clear, I must tell you how we ended up

here and start from the beginning." In her first sentence of

the second paragraph appears the first conflict in the evidence

of record. In that sentence, Ms. Atwater writes, "Shortly after

starting to work here, I began to experience unpleasantness from

Cpl. Kenn eth Davis. His obnoxious gestures, comments and

disposition could not be tolerated any longer." (This

conclusion consisted of the three separate allegations against

Deputy Davis made herein above.) With this opportunity to

formally complain of sexual ha rassment in the work place,

Ms. Atwater failed to include the fact that it was she who

initially asked Deputy Davis why Lieutenant George called her

the sexually offensive name of "Ms. Ashwood." Intentionally

choosing to allege that Deputy Davis' answer to her question why

Lieutenant George kept calling her "Ms. Ashwood" was the initial

sexual harassment that created a hostile work place is

contradictory to her testimony.

28. Continuing, Ms. Atwater wrote -- "I did tell him that I

felt he 'played too much, ' and need[ed] to stop moaning and

groaning behind me." Even though she recounted moaning and

groaning, she specifically omitted her alleged verbatim

statements made by Deputy Davis (Finding of Fact 12 hereinabove)

when he answered her question "why Lieut enant George calls me

Ms. Ashwood."

29. This is significant in that Ms. Atwater's testimony

was that Deputy Davis' alleged verbatim statements when he

answered her question were so "sexually harassing" that she was

"immediately" offended the moment she he ard them. Yet, she

omits any mention that it was Lieutenant George continuously

calling her "Ms. Ashwood" that initially and repeatedly offended

her. The name Ashwood she considered had such a negative sexual

reputation in the community that she was imme diately offended

and sexually harassed when Lieutenant George first called her

Ms. Ashwood and each time thereafter. She omits any mention

that it was her inquiry of Deputy Davis, "why Lieutenant George

[sexually harassing her] was calling her the offensi ve name of

Ms. Ashwood" that produced the alleged response.

30. Based upon Ms. Atwater's acknowledgement contained in

her October 30, 2002, memorandum to Sergeant Groff, I find that

her allegations that Deputy Davis caused a delayed wait of two

hours to g et inmates pulled and, thus, "creat[ed] a hostile work

environment" to be contrary to her August 9, 2002, memorandum to

Sergeant Armsheimer, admitting that had she known her inmates

were not in barrack C, she would have left and had lunch "one

and one - half " hours prior. Ms. Atwater further admits in

writing that from May of 2002 forward, she and Deputy Davis

"barely" spoke to one another. If Ms. Atwater's memory is

presumed to be accurate and she and Deputy Davis discontinued

speaking to one another durin g the March through May 2002

period, it was not logical to conclude that Deputy Davis

repeatedly and continually moaned and groaned in her ear for

"months" thereafter ( i.e. June, July, August, and October). For

the fourth time, Ms. Atwater chose not to an d did not report

this fourth incident to her immediate supervisor at or near the

time it occurred. Her sexual harassment complaint against

Deputy Davis was filed after her October 2002 complaint was

filed against Lieutenant George. Her fourth decided ref usal to

immediately report sexual harassment by the same co - worker is

not a defense, if he were guilty of such conduct, and does not

absolve Deputy Davis from liability. Her choosing a fourth time

not to report the initial alleged sexual harassment by Dep uty

Davis during the March through May period, when coupled with the

contradiction between her testimony that Deputy Davis was the

cause of a two - hour delay in pulling her inmates, and her

memorandum wherein she acknowledges that her inmates had been

writt en up by Sergeant Hartfield, presents a credibility

obstacle.

31. Ms. Atwater makes no further mention of Deputy Davis

in her October 30, 2002, memoranda, devoting the remainder to

Lieutenant George. She recounts in detail their initial

friendly relatio nship, turning to a cold and unfriendly

relationship, the keeping - your - distance treatment, their many

phone conversations at work, their lunch dates away from the

work place, and their private phone calls when at home, ending

on October 24, 2002, with an i ncident of kissing and Lieutenant

George rubbing his groin against her buttocks and her resisting

his advances. ( See Joint Exhibit J - 1.)

32. In her final paragraph, Ms. Atwater relates how,

unbeknownst to Lieutenant George, she arranged for a three - way

c all between herself, Lieutenant George, and her uncle, a City

of St. Petersburg employee. She arranged the three - way call for

the purpose of securing a witness to corroborate her statements

regarding the Lieutenant George sexual harassment encounter.

33. Though her alleged initial sexual harassment was

initiated by Deputy Davis and continued for months, Ms. Atwater

made no similar attempt to corroborate her claims of sexual

harassment against Deputy Davis. Knowing that Deputy Davis was

not within her cha in - of - command and not in a supervisory

position over her, there was no logical reason for Ms. Atwater

to fear promotions and job security. Ms. Atwater knew that

filing a complaint against a lieutenant within her chain - of -

command presented a greater risk t han filing a complaint against

Deputy Davis who was not in her chain - of - command. Her choosing

not to record (or procure corroboration) the Deputy Davis

incidents, when coupled with her delay of many months in

reporting her compliant through proper channel s because of fear

of reprisal, rings hollow.

34. It was after the Administrative Review Board had begun

an investigation of Ms. Atwater's October 2002 complaint of

sexual harassment against Lieutenant George that the Sheriff

initiated an investigation of Deputy Davis. Only after her

egregious October 24, 2002, incident involving Lieutenant George

did she file a subsequent and separate sexual harassment

compliant against Deputy Davis.

35. In the absence of corroboration, Ms. Atwater's

testimony of a singl e incident of intentional touching and her

testimony of alleged verbatim statements made by Deputy Davis

and his unequivocal denial presents a "she said - he said"

dilemma. Neither party's testimony is inherently more credible

than the other party's testimo ny. Contrary to the opinion of

Major Brunner, who sat on the Administrative Review Board, that

when the Administrative Review Board questioned Deputy Davis

regarding those allegations, Deputy Davis was "in denial." This

assumption and by implication pres umed guilt, thereby lending

credibility to Ms. Atwater's allegations, is a conclusion not

based on fact and is contrary to the evidence adduced during the

de novo proceeding. Ms. Atwater's testimony of incidents having

occurred over a four - month or more p eriod and the lack of time

or specific dates coupled with the contradictions between her

testimony during the final hearing and her August 9, 2002,

memorandum to her supervisor, creates an unfathomable chasm in

the evaluation of her credibility.

36. The Inspection Bureau of the Administrative Inspection

Division investigated Ms. Atwater's complaint and submitted

their investigative results to the Administrative Review Board,

made up of various employees with the Pinellas County Sheriff's

Office. The Adm inistrative Review Board determined that

Petitioner, Deputy Davis, had violated the Pinellas County

Sheriff's Office Civil Service Act, Laws of Florida, 89 - 404, as

amended by Laws of Florida, 90 - 395, Section 6, Subsection 4:

violation of provisions of the law or rules, regulations, and

operating procedures of the Pinellas County Sheriff's Office.

37. The Administrative Review Board determined that Deputy

Davis' conduct was a violation of the rules and regulations of

the Pinellas County Sheriff's Office, Ru les 3 - 1.1 (level five

violation) and 5.16, relating to sexual harassment and

discrimination as defined in the Sheriff's General Order 3 - 4.

38. The Administrative Review Board determined that Deputy

Davis' available range of discipline was calculated in

co nformance with the matrix contained within General Order 10 - 2

of the Pinellas County Sheriff's Office that allocates a point

scale to various violations. The matrix provides that a level

five offense, which includes sexual harassment, results in a 50 -

poin t assessment. Deputy Davis scored a total of 50 cumulative

points with a discipline range of five - day suspension up to and

including termination. Demotion is also authorized under the

applicable General Order.

39. After considering the evidence and avai lable

sanctions, the Sheriff notified Deputy Davis on March 10, 2003,

that he was imposing a ten - day suspension without pay and

demoting him from the rank of corporal to the rank of detention

deputy.

40. After weighing all the evidence, including the

Sher iff's evidentiary presentation of Ms. Atwater's testimony of

verbal comments made and intentional body conduct allegedly

engaged in by Deputy Davis, this fact finder finds the

uncorroborated hearsay evidence insufficient to prove, by a

preponderance of the evidence, the allegations that Deputy Davis

made sexually harassing verbal comments to Ms. Atwater, and that

he made intentional sexually harassing body contact with her, so

as to create a hostile work environment.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to Sections 120.57(1) and 120.68(8), Florida

Statutes, and Chapter 89 - 404, Section 8, Laws of Florida, as

amended by Chapters 90 - 395, Section 8, Laws of Florida.

42. The burden of proof is on the party asserting the

affirmative of an issue in an administrative proceeding.

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981). Respondent must prove the allegations

in its complaint by a preponderance of the evidence.

43. The preponderance of evidence standard has been

consistently applied in cases involving the termination of

employment. See Dalem v. Department of Corrections , 720 So. 2d

575 (Fla. 4th DCA 1998). In addition, the District Court of

Appeals, First District, held that the imposition of discipline

upon a career service employee requires proof by a preponderance

of the evidence. Latham v. Florida Commission on Ethics , 694

So. 2d 83, n. (Fla. 1st DCA 1997) ; Department of Agriculture

and Consumer Services v. Edwards , 654 So. 2d 628 (Fla. 1st DCA

1995); Fitzpatrick v. City of Miami Beach , 328 So. 2d 578 (Fla.

3d DCA 1976). The appropriate standard of proof required is a

preponderance of the evidence. In or der to prevail, Respondent

must prove by a preponderance of the evidence that Deputy Davis'

conduct (alleged statements and actions) violated the rules,

regulations, and operating procedures of the Pinellas County

Sheriff's Office.

44. While Petitioner a rgues that the clear and convincing

evidence standard is appropriate given the rationale expressed

within In re: Rudy Maloy , DOAH Case No. 02 - 1231EC, the argument

provides little assistance since that case involved an alleged

violation by a public officia l of the Florida Ethics Code

pursuant to Section 112.317(1)(a), Florida Statutes.

45. This case, however, involves Respondent seeking to

discipline an employee for repeated episodes of verbal and

physical sexual harassment. Moreover, while Petitioner is not

directly within the State of Florida's Career Service System, he

is similarly situated within the protected Classified Service

System of the Pinellas County Sheriff's Office and has attained

permanent status as an employee. See Chapter 89 - 404, Laws of

Florida.

46. Chapter 89 - 404, Section 6, Laws of Florida, authorizes

Respondent to suspend, dismiss or demote classified employees

for certain offenses. It provides in pertinent part the

following:

(4) Cause for suspension, dismissal or

demotion shall include, but shall not be

limited to: negligence, inefficiency, or

inadequate job performance; inability to

perform the assigned duties, incompetence,

dishonesty, insubordination, violation of

the provisions of law or the rules,

regulations, and operatin g procedures of the

Office of the Sheriff, conduct unbecoming to

a public servant, misconduct, or proof

and/or admitted use of illegal drugs.

(5) The listing of causes for suspension,

demotion, or dismissal in this section is

not intended to be exclusiv e. The Sheriff,

by department rule, may add to this list of

causes for suspension, dismissal or

demotions.

47. In addition, Chapter 89 - 404, Section 2, Laws of

Florida, authorizes Respondent to adopt rules, regulations and

policies that establish the stan dard of conduct for employees of

the Pinellas County Sheriff’s Office.

48. Respondent's complaint alleges that Petitioner

violated the Pinellas County Sheriff Office Civil Service Act

and rules, regulations, and operating procedures of the Pinellas

County Sheriff's Office by creating a hostile work environment

and engaging in sexually harassing statements and body contact

with Ms. Atwater. Respondent did not prove by a preponderance

of the evidence that Petitioner repeatedly engaged in

inappropriate and u nsolicited sexually harassing verbal comments

to Ms. Atwater and did not prove Petitioner physically touched

and/or made intentional, sexually intended contact with

Ms. Atwater's person. Therefore, Respondent did not meet its

burden and did not prove by a preponderance of the evidence that

Petitioner’s conduct (both verbal and physical) violated the

rules, regulations, and operating procedures of the Pinellas

County Sheriff's Office. 1

49. Considering the competent and substantial evidence of

record, Peti tioner's ten - day suspension, without pay, and his

demotion from the rank of detention corporal to the rank of

detention deputy was inappropriately imposed by the Sheriff.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it i s hereby

RECOMMENDED that the Civil Service Board of the Pinellas

County Sheriff's Office enter a final order finding that:

1. Petitioner did not commit the verbal and physical

conduct alleged in the charging document and that there was no

violation of th e rules, regulations, and policies of the

Pinellas County Sheriff's Office as alleged.

2. Petitioner's ten - day suspension from his employment as

a detention corporal with the Pinellas County Sheriff's Office

was therefore inappropriate.

3. Petitioner's d emotion from his previous rank of

detention corporal to the rank of detention deputy was therefore

inappropriate.

4. Petitioner's ten - day suspension from his employment as

a detention corporal with the Pinellas County Sheriff's Office

be restored with ful l detention corporal's pay and benefits.

5. Petitioner be restored to the rank of detention

corporal 2 and given full duties and responsibilities as

previously held.

DONE AND ENTERED this 20th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2003.

ENDNOTES

1/ Section 90.801(1)(c), Florida Statutes, "'[h]earsay' is a

statement, other than one made by the declarant while testifying

at the tri al or hearing, offered in evidence to prove

the truth of the matter asserted." Rule 28 - 106.213(3), Florida

Administrative Code, limits the use of hearsay evidence

supplementing or explaining other evidence, but such hearsay

evidence shall not be sufficie nt in itself to support a finding

unless the evidence falls within an exception to the hearsay

rule as found in Chapter 90, Florida Statutes.

2/ Counsel for each party agreed to disagree on the issue of

whether Deputy Davis' corporal rank was an assignm ent position

(when one is assigned to a specific duty - position, the rank (in

this case corporal) goes with the duty assignment) or a tested

position (a position that required one to pass a test and be

promoted to the position not withstanding duty assignme nt, i.e.,

corporal). Neither party proffered evidence on this issue.

The undersigned intentionally makes no finding of fact nor by

the Recommendation imply a decision had been made regarding the

issue of "Corporal rank as duty assignment position vs. C orporal

rank as a tested position." After completing 23 years of

service Deputy Davis earned and occupied both the rank of

corporal and the position as detention corporal. The Sheriff

inappropriately imposed punishment by taking from Deputy Davis

both hi s corporal rank and his barrack C detention position. A

just result demands that the Sheriff restore to Deputy Davis

exactly what was taken from Deputy Davis. Therefore, full and

just restoration shall include his prior rank (corporal) and his

prior posi tion (detention barrack C) at the Sheriff's office.

COPIES FURNISHED :

William M. Laubach, Esquire

Pinellas County Police Benevolent

Association

14450 46th Street, North, Suite 115

Clearwater, Florida 33762

Keith C. Tischler, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office

Post Office Drawer 2500

Largo, Florida 33779 - 2500

B. Norris Rickey, Esquire

Assistant County Attorney

315 Court Street

Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.