03-001108 James S. Brown, Jr. vs. Alachua County Sheriff`s Department Status: Closed Recommended Order on Friday, July 30, 2004.

Summary: Petitioner did not prove that employees outside of his protected class were treated more favorably in terms of discipline. Respondent showed sufficient policy violations to justify demotion of Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES S. BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 03 - 1108

)

ALACHUA COUNTY SHERIFF'S )

DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Thi s cause came on for formal hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings in Gainesville, Florida, on

January 20, 2004.

APPEARANCES

For Petitioner: Matthew J. Wells, Esquire

Post Office Box 5606

Gainesville, Florida 32627 - 5606

For Respondent: Linda G. Bond, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner was demoted to an inferior employment

position and, if so, whether the demotion was motivated by

reasons of racial d iscrimination, as he has charged.

PRELIMINARY STATEMENT

This cause arose in February 2000 when Stephen M. Oelrich

in his official capacity as Sheriff of Alachua County (Sheriff,

Respondent) promoted the Petitioner James S. Brown, Jr. (Brown),

from the po sition of deputy sheriff to sergeant. The promotion

was subject to a one - year probationary period. After two

investigations of alleged incidents of wrongful conduct, in

November 2000, prior to the conclusion of the probationary

period, the Sheriff determ ined that the Petitioner had committed

certain policy violations. Consequently, he demoted the

Petitioner back to his former position as deputy sheriff.

The Petitioner has alleged that the demotion was because of

the Petitioner's race (black). The Petit ioner filed a charge of

discrimination with the Florida Commission on Human Relations

(Commission) and ultimately, after the Commission made a finding

of no cause, the case was transmitted to the Division of

Administrative Hearings.

The cause came on for h earing as noticed. The Petitioner

presented one witness (himself), and no exhibits. The

Respondent presented six witnesses and had the Respondent's

Exhibits numbered 1, 3, 6, 7, and 14 admitted into evidence.

Upon concluding the proceeding, a transcript was ordered which

was filed May 14, 2004, with the Division. In conjunction with

their request for an extended period of time to file proposed

recommended orders, the P roposed R ecommended O rder filed by the

Respondent was timely filed. However, no propo sed recommended

order has been received from the Petitioner. The Proposed

Recommended Order filed by the Respondent has been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, James S. Brown, Jr., is a black male

deputy sheriff, employed by the Sheriff of Alachua County. He

has been employed by the Sheriff for approximately 17 years. He

was assigned to "uniform patrol" during his employment, but for

the majority of his employment time he was assigned to the

narc otics division. Sheriff Stephen Oelrich promoted the

Petitioner to sergeant in February 2000 and assigned him to a

road patrol position and duty. The Sheriff believed at that

time that Brown was qualified to serve as a sergeant. The

Petitioner, like all other similarly promoted employees, was

required to serve a one - year probationary period following the

promotion.

2. Sheriff Oelrich is the elected Sheriff of Alachua

County, Florida, and has served in that position for 11 years.

It is his responsibil ity to make final employment decisions,

including promotions, suspensions, demotions, and terminations.

He has had a goal and practice of promoting qualified African -

Americans to positions of responsibility including having black

captains in charge of pat rolling and criminal investigation, as

well as promoting black females to lieutenancy's assigned to

patrol duties. Additionally, the Respondent Sheriff conducts

internal investigations upon receipt of complaints. The

internal investigations concerning th e Petitioner in this case

were initiated because of complaints received by professional

standards personnel of the Sheriff's Department, from either

external or internal sources or informants.

Majestic Oaks Apartments Complaint

3. On or about November 2 000, the Respondent's O ffice of

P rofessional Standards received an internal memorandum from

Sergeant Clifton Reynolds, a black male. The memorandum

concerned a complaint he had received from a person at the

Majestic Oaks Apartments in Gainesville, Florida . The complaint

alleged that the Petitioner was attempting to use his position

with the Sheriff's Department to obtain an apartment for a

former girlfriend, Athena Brown, who had a criminal history.

The criminal history would have precluded her from rent ing the

apartment under the policies and rules of the apartment owner.

4. The Respondent's chief inspector, Charlie Lee,

initiated an investigation into the matter. He assigned the

investigation responsibility to Lieutenant Joel DeCoursey.

Eventually he assigned the case to inspector Norman Atkins due

to workload considerations. Inspector Atkins conducted the

majority of the investigation and interviewed Kimberly Figard,

Brenda Raulson, Athena Brown, as well as the Petitioner.

5. The Petitioner purpo rtedly went to the Majestic Oaks

Apartment Complex to take a child support order that would

verify Athena Brown's income. Kim Figard was the secretary at

the office at Majestic Oaks. According to her testimony, the

Petitioner identified himself as a depu ty sheriff and offered to

perform extra patrols around the apartment complex in return for

Athena Brown's being allowed to rent an apartment, in spite of

her criminal history, which would ordinarily render her

ineligible for an apartment.

6. Chief Inspe ctor Lee did not instruct Investigator

Atkins to make any particular finding in the Petitioner's case.

In fact, when Investigator Atkins informed Chief Inspector Lee

that the investigation might go nowhere, Inspector Lee told

Investigator Atkins, "if you ain't got nothing, you ain't got

nothing." Ultimately, however, Investigator Atkins believed

that there was a preponderance of evidence that the allegations

against the Petitioner should be sustained. Ultimately, the

Respondent relied upon evidence colle cted during the

investigation to reach a "sustained finding" that the Petitioner

went to the Majestic Oaks Apartments and identified himself as a

deputy sheriff, attempting to use the status of his office or

position, to assist, and with the expectation, t hat

Athena Brown, the mother of his child, would obtain an apartment

she might not otherwise qualify for. The evidence relied upon

by the Respondent included the results of a polygraph

examination that the Petitioner volunteered to take and which

indicate d deception on the part of the Petitioner. The

investigator ultimately found the Petitioner to be untruthful as

to his version of the Majestic Oaks Apartments events and

ultimately it was concluded that the Petitioner violated the

Respondent's policy rega rding conduct unbecoming an employee and

regarding truthfulness.

7. The Respondent uses polygraph tests while conducting

other internal investigations and has done so both before and

after the internal investigation related to the Petitioner. The

Respo ndent follows a point system with regard to imposing

disciplinary action. Each level of violation is assigned points

that are carried over if there are future violations. "Carry -

over points" can increase the severity of subsequent discipline.

8. Upon re viewing the investigatory findings and

recommendations, based on that point system, Sheriff Oelrich

believed the results to be accurate. He had no reason to

believe that the investigation or the results contained any

racial bias. In fact, complaints of a racially biased

investigation are themselves routinely investigated as a

potential disciplinary matter.

9. The initial recommended discipline for the Petitioner

for the violations with regard to the Majestic Oaks Apartments

incident, was fifteen days' s uspension without pay and a six -

month extension of the probationary period. The Sheriff met

with the Petitioner on December 21, 2000, however, and agreed to

reduce his discipline to eight days' suspension without pay and

a six - month extension of his proba tionary period. The

Respondent still wanted to retain the Petitioner in a leadership

role because of his past good performance.

The second investigation

10. Chief Inspector Lee received information also from

Deputy Billy Ray Hunter, which revealed that several members of

a drug task force Hunter was assigned to had expressed concern

that the Petitioner was associating with a known felon.

Gainesville Police Department Detective Jeff Nordberg was also a

part of that task force. Deputy Hunter reported tha t the

Petitioner had ignored Nordberg's request to cease associating

with an individual later determined to be Andrew Maddox. Upon

receipt of the information, the Respondent interviewed one of

the drug task force's confidential informants and then initiat ed

an internal investigation into the allegations.

11. Chief Inspector Lee conducted the investigation.

During the course of the investigation, Lee interviewed Deputy

Sheriff Hunter, a confidential source identified as FDLE - 205,

Federal Probation Offic er Beverly Stiefvater, Detective

Jeff Nordberg, Lieutenant Mike Thompson, and Andrew Maddox.

12. The Petitioner and Detective Nordberg of the

Gainesville Police Department had previously worked together in

a narcotics unit. The Petitioner was a drug in vestigator at the

time and had not yet been promoted to sergeant. Nordberg had

been a narcotics officer with the D rug E nforcement

A dministration (DEA).

13. Detective Nordberg knew Andrew Maddox to be the focus

of several drug investigations that year, which led to

convictions of other individuals. While Nordberg was with the

DEA, the Petitioner called him and advised him that he was

"riding around" with Maddox and that Maddox was "showing him

some things." Nordberg understood the Petitioner to mean th at

he was obtaining information from Maddox, because Nordberg knew

that Maddox was the focus of a drug investigation and he asked

the Petitioner to call him when Maddox was no longer present.

14. Nordberg told the Petitioner in a subsequent telephone

ca ll, that the DEA was making controlled drug purchases and that

he believed that Maddox was supplying the cocaine in question.

Nordberg advised the Petitioner of the information because he

was unsure what role Maddox was trying to play by associating

with the Petitioner and with drug dealers. Nordberg received

information from another drug dealer that the "word on the

street" was that the Petitioner and Maddox were "tight."

Nordberg advised the Petitioner in the same manner in which he

would expect anothe r law enforcement officer to advise him in a

similar situation.

15. Nordberg contacted the Petitioner a second time to

advise him about the "word on the street" regarding the

Petitioner and Maddox. The Petitioner advised Nordberg to take

whatever actio n he needed regarding Maddox and that he would try

to give them whatever information he could.

16. Because of the information he was receiving on the

street regarding the Petitioner's relationship with Maddox,

Nordberg advised Richard Brooks, another of the Respondent's

employees, because he wanted the Respondent to know what was

going on. However, he did not want to file a formal complaint

against the Petitioner.

17. Federal Probation Officer Beverly Stiefvater, Maddox's

probation officer, knew the Pe titioner through his formal

assignment in the drug unit. On one occasion, Maddox advised

Stiefvater concerning contact he had with the Petitioner. She

called the Petitioner and he advised her that he did not intend

to use Maddox in any official manner. On another occasion, she

observed an Alachua County Sheriff's Office patrol vehicle

parked in front of Maddox's business. Maddox advised Stiefvater

that the vehicle belonged to the Petitioner and that the

Petitioner was at his business to lift weights. T he Petitioner

made no effort to contact Stiefvater, Maddox's probation

officer, while she was present at Maddox's place of business or

afterward to advise her of contact he was having with the

Petitioner. Stiefvater became concerned about the Petitioner's

presence at Maddox's place of business, because of a certified

law enforcement officer, she questioned the ethical and moral

correctness of "hanging out with convicted felons." She also

discussed the Petitioner's presence at Maddox's place of

business wi th other DEA officers working on the case against

Maddox.

18. The Petitioner and his wife accompanied Maddox to an

automobile auction so that Maddox could assist the Petitioner's

wife in purchasing a vehicle through the use of Maddox's

automobile dealer 's license. While at the auction, Maddox

pointed out persons he believed to be drug dealers from other

counties and advised the Petitioner how the drug dealers were

outfitting vehicles to transport drugs, according to the

Petitioner. The Petitioner, howe ver, did not provide a written

report of any of the information received from Maddox to any

person in his chain of command. Although he had obtained

information from other sources, the Petitioner did not attend an

auction with any of his other sources.

19. When the Petitioner sought promotion to sergeant,

Lieutenant Mike Thompson wrote a letter of support on his behalf

to the Sheriff. Thompson had supervised the Petitioner for

approximately 12 years and found him to be an excellent

employee. After rec eiving information that the Petitioner was

having contact with Maddox, including using Maddox to purchase

vehicles or a vehicle and spending time at Maddox's business, he

advised the Petitioner about the Respondent's policy regarding

associating with known felons. The Petitioner expressed to

Thompson that he did not care what other people thought.

20. On one occasion while Petitioner was assigned to

patrol, the Petitioner came to Thompson's office and called

Maddox so that he could provide information t o Thompson

regarding drug dealing. Maddox told Thompson that he would call

back to provide the information but failed to ever do so.

Thompson, as the Petitioner's supervisor, never received any

drug violation - related information from Maddox either directl y

or indirectly through the Petitioner's efforts.

21. The Respondent's policy states that "Employees while

on duty will avoid regular or unnecessary association with

persons they know or should know are racketeers, sexual

offenders, drug dealers, or con victed felons if not authorized

or required due to the nature of the assignment. Association

with known offenders or their families, as mentioned above,

while off duty is not authorized unless specifically approved by

the Sheriff."

22. The Respondent exp ects its employees and officers who

receive information that may be useful for a law enforcement

purposes to document that information in writing, for submission

to the appropriate agency personnel. The Petitioner did not

present any evidence that any emp loyee received information from

him or through his efforts and he failed to properly document

any information obtained from Maddox or otherwise.

23. After interviewing the identified witnesses and

considering all of the information, the investigator con cluded

that the Petitioner had violated the Respondent's policy

regarding association with a known felon and regarding conduct

unbecoming an employee. The investigator provided the Sheriff

with the disciplinary recommendation based upon the carry - over

poi nts from the previous investigation. The Sheriff thereupon

reasonably concluded that the information in the investigative

report was true and correct.

24. The Sheriff thereupon demoted the Petitioner because

of his concern about the Petitioner's leadersh ip skills and his

ability to provide direction to subordinate deputies regarding

proper contact with known felons in view of the deficient

example he was found to have demonstrated regarding his own such

association. The Sheriff was also concerned that th e Petitioner

had been warned about the relationship with Maddox and did not

appear to have heeded those warnings. The Petitioner appeared,

at best, to be conducting some sort of investigation on his own

(although that has not been persuasively demonstrate d) and he

failed to document his actions or any information he may have

received. Sheriff Oelrich also considered that an outside

agency had also contacted the Petitioner regarding his contact

with Maddox. The Sheriff advised the Petitioner at the time o f

the demotion that he was demoting him because of his failure to

document any information he received from Maddox. There is no

persuasive evidence that the Sheriff decided to demote the

Petitioner because of any motivation related to the Petitioner's

rac e.

Comparative Employee Discipline

25. The Petitioner has identified the following white

persons as being similarly situated comparators: Sergeant

Darrell Bassinger, Lieutenant David Clark, Deputies Mark

Galanos, Brian Davis, Jason Lee, Retired Lieutena nt Danny

Pascucci, and Records Clerk Susan Marks. However, he did not

present any additional documentary evidence to support his

testimony. His testimony in this regard is hearsay and cannot

be the basis of a finding of fact. When the Petitioner was

pre sented with documentary evidence regarding these other

employees, his testimony was shown to differ significantly from

the documents. For example, he testified that Deputy Kenny Holt

was investigated for conduct unbecoming an officer and had

received "a c ouple of days off" for an incident that occurred at

Ironwood Golf Course. In actuality, Deputy Holt was charged

with criminal conduct and not conduct unbecoming an officer.

Deputy Holt received a 20 - day suspension without pay, a one - year

probation and wa s required to go to alcohol rehabilitation. The

Petitioner also misstated the Respondent's policy regarding

associating with a known criminal, as well as who was present

during Lieutenant Mike Thompson's interview during the internal

investigation.

26. In fact, Deputy Kenny Holt, a white male, is not

similarly situated to the Petitioner because Holt was not a

sergeant at the time of the imposition of his discipline.

Furthermore, Deputy Holt violated the Respondent's policy

prohibiting criminal conduct and received a 20 - day suspension

without pay and a one - year disciplinary probation. Deputy Holt

did not have a violation for conduct unbecoming an officer or

for associating with a known offender. The Petitioner has never

received a 20 - day suspension wit hout pay for any single

violation.

27. Lieutenant Don Tyson, a white male, is not similarly

situated to the Petitioner because there was not a sustained

finding of a policy violation against him as the result of his

investigation. Lieutenant Tyson also did not have any carry -

over points and was not a probationary employee. He also did

not have multiple violations established against him.

28. Records Clerk Susan Marks, a white female, is not

similarly situated to the Petitioner. Ms. Marks was not a

sergeant, not a supervisor, and is not even a certified law

enforcement officer. The Petitioner produced no evidence to

show that Ms. Marks had any multiple policy violations or that

she had any disciplinary carry - over points at the time of the

investigat ion as to her. The Respondent learned about Ms. Marks

involvement with a known felon after the felon was shot in the

Respondent's parking lot in mid - 2003. The Respondent then

initiated an internal investigation following that shooting.

Prior to the shoo ting incident, the Petitioner believed that

Ms. Marks had a relationship with a known felon, but did not

file a complaint and did not provide evidence that any other

person had filed a complaint regarding Ms. Mark's association.

The Petitioner produced no evidence to persuasively establish

that the Petitioner had any knowledge of any such relationship

by Ms. Marks prior to that shooting incident.

29. Neither Sergeant Darrell Bessinger nor Lieutenant

David Clark, also white males, engaged in identical or s imilar

conduct as the Petitioner. They were not charged with the same

violations as the Petitioner, and did not have any disciplinary

carry - over points. The Petitioner speculated but did not

provide any persuasive evidence to the effect that Bessinger or

Clark were probationary employees, at the time of any discipline

of them.

30. Brian Davis, a white male, is not similarly situated

to the Petitioner. There is no evidence that he was a

probationary employee nor that he had multiple violations or had

any disciplinary carry - over points, as did the Petitioner.

Mr. Davis was not a supervisor at the time of his discipline, as

was the Petitioner.

31. Deputy Michael Galanos, a white male, is not similarly

situated to the Petitioner. The Petitioner produced no

persuasive evidence that Galanos was a supervisor and did not

show that Galanos had multiple violations or disciplinary carry -

over points. The Respondent initiated an internal investigation

regarding Deputy Galanos for associating with a known felon.

After the initial portion of that investigation revealed that

there might be criminal implications, the Respondent began a

criminal investigation. Because the criminal investigation took

priority, the internal investigation would have been re -

activated o nly after the completion of the criminal

investigation. That did not occur because Galanos took a leave

of absence or resigned before the completion of the criminal

investigation and has never been rehired. There was therefore

no reason to conclude the i nternal administrative investigation.

32. Danny Pascucci, a white male, is also not similarly

situated, as an employee, to the Petitioner. The Petitioner

produced no evidence that Pascucci was probationary in his

position as lieutenant. The Petitioner d id not establish that

any complaints had been filed against Pascucci, that he had

multiple policy violations, or that he had any disciplinary

carry - over points. The Petitioner produced no evidence that

Pascucci's relationship with a documented confidentia l source

was not authorized.

33. The Petitioner did not identify any white deputies who

had sustained findings of conduct unbecoming an officer who

received more favorable discipline than he received.

CONCLUSIONS OF LAW

34. The Division of Administrati ve Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003)

35. In order for the Petitioner to meet his initial burden

of proving a prima facie case of race discrimination, the

Pet itioner must show that he is:

1. a member of a protected class;

2. was qualified for the position he held

or sought;

3. suffered an adverse employment action;

and

4. was treated less favorably than others

similarly situated outside the protected

class, who received more favorable

treatment.

See Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1995);

McDonnell - Douglas v. Green , 411 U.S. 792, 804 (1973)

36. In determining whether employees are similarly

situated for purposes of establishing a prima fa cie case, the

courts consider whether the employees involved are accused of

the same or similar conduct and are disciplined in different

ways. Jones v. Bessemer Carraway Med. Ctr. , 137 F.3d 1306, 1311

(11th Cir.), opinion modified by 151 F.3d 1321 (11th C ir. 1998).

Moreover, in order to be similarly situated, "the quantity and

quality of the comparator's misconduct must be nearly identical

to prevent courts from second - guessing employers' reasonable

decisions and confusing apples with oranges." Henry v. City of

Tallahassee , 216 F. Supp. 2d 1299, 1316 (Northern District Fla.

2002) citing Maniccia , 171 F.3d 1364. (11th Cir. 1999).

37. As stated by the court in Maniccia , 171 F.3d at 1368 -

1369 "The most important factors in the disciplinary context are

the n ature of the offense committed and the nature of the

punishments imposed . . . . Further, Title VII does not take

away an employer's right to interpret its rules as it chooses,

and to make determinations as it sees fit under those rules."

Maniccia v. Bro wn , 171 F.3d 1364, 1368 - 69 (11th Cir. 1999),

rehearing denied , ( quoting Jones , 137 F.3d at 1311); See also

Nix v. WLCY Radio/Rahall Comms. , 738 F.2d 1181, 1187 (11th Cir.

1984).

38. Specifically, the inquiry is limited to "whether

employees are similarly situated for purposes of establishing a

prima facie case," not whether an employee can construct a

situation in which he could conceivably be similarly situated.

A relevant inquiry is whether comparatory employees committed

the same or nearly identical ac ts and whether the discipline

imposed is the same or nearly identical. The inquiry must be

confined to what the employer actually did in imposing

discipline on a comparative employees, not what the employer in

each of such situations "should have done." See Jones , supra ,

137 F.3d at 1311; cf. Anderson v. WBMG - 42 , 253 F.3d 561, 567

(11th Cir. 2001).

39. When the same supervisor or employment decision - maker

hires and fires an employee within a short period of time, the

employer is generally entitled to an inference of non -

discrimination in the disciplinary decision made. See Smith v.

Florida Dept. of Transp. , 1999 WL 33216741, *4 (Middle District

Fla. 1999). In Bradley v. Harcourt, Brace and Co. , 104 F.3d

267, 270 - 71 (9th Cir. 1996), the court drew a stro ng inference

of non - discrimination when the same "actor" hired and then fired

the plaintiff, and both actions occurred in a short time period.

The court likewise held in Brown v. CSC Logic, Inc. , 82 F.3d

651, 658 (5th Cir. 1996)(approving a "same actor" i nference

after noting that several circuit courts have approved the

same). In Evans v. Technologies Applications & Service Co. ,

80 F.3d 954, 959 (4th Cir. 1996), it was recognized that there

was a powerful inference in favor of an employer to the effect

t hat the employer's failure to promote a plaintiff was not

motivated by disciplinary animus where the employer who failed

to promote the plaintiff was the same decision - maker who had

recently hired the plaintiff.

40. In the present case, the Respondent d oes not dispute

that the Petitioner is a member of a protected class and that he

suffered an adverse employment action. The Petitioner, however,

could not establish a prima facie case of race discrimination

because, for the reasons demonstrated in the abo ve Findings of

Fact, he was unable to show that a person outside of his

protected class engaged in conduct nearly identical to his

conduct and received disciplinary treatment that was more

favorable than that that he received. The comparative

employees, w ere not established to be similarly situated, for

the reasons demonstrated in the above Findings of Fact.

41. Even if such a petitioner establishes a prima facie

case of race discrimination, the Respondent had a legitimate,

non - discriminatory, business re ason for demoting the Petitioner

from the position of sergeant back to that of deputy sheriff.

42. In November 2000, the Respondent received the formal

complaint alleging that the Petitioner was misusing his position

as a law enforcement officer by attemp ting to use his influence

as an officer to assist the mother of one of his children in

obtaining an apartment at the apartment complex, when she was

not really qualified, due to her criminal record. The

investigation in that matter sustained a finding tha t not only

had he misused his position in that regard, but was also

untruthful during the investigation of the matter. Even so, the

Respondent extended his probationary period for six months and

only suspended him for 8 days without pay, a lesser penalty than

could have been imposed under the Respondent's prevailing

policy. Although the Respondent relied upon the results of a

polygraph examination, the Petitioner voluntarily underwent that

polygraph examination and the record demonstrates that the

Respond ent uses polygraph examinations in internal

investigations of other employees, both before and after the

occurrence in question and that the use of the polygraph was not

in any way based upon the Petitioner's race. While the

purported results of the polyg raph examination are not and

cannot be employed in determining the truthfulness of the

Petitioner's version of the events at issue in this proceeding,

they could be used in an evidential way as demonstrating part of

the Respondent's motivation in electing the disciplinary action

taken.

43. It is also true, that prior to the conclusion of the

investigation of the Majestic Oaks Apartments' incident, the

Respondent received a second formal complaint concerning the

Petitioner's association with a known felon . Following an

internal investigation of that second complaint, it was

concluded by the Respondent that the Petitioner had violated the

Respondent's policy concerning unauthorized association with a

known felon. In light of the disciplinary action impose d in the

Majestic Oaks incident and the newly sustained allegations as to

the second formal complaint regarding association with a known

felon, the Respondent elected to demote the Petitioner and

return him to his prior position as deputy. The Respondent

determined that the association by the Petitioner with a known

felon, his possession of prior carry - over disciplinary points,

and including his disregard of both Detective Nordberg's and

Lieutenant Thompson's warning comments concerning his

association wit h the known felon, showed he did not possess the

leadership skills necessary for a sergeant. He was deemed to

lack an understanding of how his conduct affected the agency's

reputation and how it provided a poor example of proper conduct

of a law enforceme nt officer in such situations to his

subordinates, in his role as sergeant.

44. These facts taken together, show that the Respondent

did have a legitimate, non - discriminatory, business reason for

demoting the Petitioner back to his position as a deputy

sh eriff. It is inconceivable that the Respondent would promote

the Petitioner and then less than one year later, while he was

still a probationary employee (as the probation was extended

because of these disciplinary events) and would then demote him

simply because of his race. Although the decision to return him

to his deputy position occurred two weeks before the expiration

of his original probationary period, the six - month extension of

that probation period would have caused his probation to end on

Augus t 31, 2001. Thus, there is no question that he was still a

probationary employee at all times pertinent hereto when the

discipline and employment actions in question were imposed.

45. Because the Respondent established a legitimate, non -

discriminary reas on for the employment action taken, the burden

then shifted to the Petitioner to demonstrate by "significantly

probative evidence" that discrimination was more likely a motive

behind the decision to demote him from sergeant to deputy.

Clark v. Huntsville City Board , 717 F.2d 525, 527 (11th Cir.

1983). The Petitioner must not only show that the stated reason

was false, but also that discrimination was the true reason

behind the decision. St. Mary's Honor Center v. Hicks , 509 U.S.

502, 515 (1993); Halperin v. Abacus Technology Corp. , 128 F.3d

191, 201 (4th Cir. 1997). The ultimate burden of persuasion

always remains with the Petitioner. Id. , 509 U.S. at 511.

46. Here the evidence does not demonstrate that the

Respondent's employment action was a pretext for racial

discrimination. The record shows because of the leniency or

reduction in the degree of discipline imposed concerning the

first investigated misconduct, as well as the Respondent's

testimony about the high regard he had for the Petitioner prior

to the second investigation, that the Respondent, even after

sustaining of the findings as to the first investigation, still

wanted the Petitioner to serve in a leadership role. After the

second investigation concluded with sustainable results, the

Respon dent reluctantly concluded that the Petitioner should not

serve in a leadership role and imposed the demotion. This

desire to show the Petitioner leniency until a second violative

incident was proven to the Respondent's satisfaction (with

attendant carry - over disciplinary points) clearly shows that

there was no discriminatory animus in the employment decision

made. This results in an unavoidable conclusion that the

Petitioner has failed to demonstrate that the employment

decision made and the legitimate, business reason asserted for

it was a pretext for a decision made by through racial bias.

Moreover, there was not any persuasive demonstration that any of

the elements or circumstances of the investigation, as to either

disciplinary incident, occurred or were conducted with an

element of racial bias or animus on the part of any witness or

investigator, nor that the Respondent knew of any such animus

prior to making his decision.

47. In summary, the Petitioner did not establish a prima

facie case because he did not demonstrate that any similarly

situated persons outside his protected class received

disciplinary treatment that was more favorable. Even if one

assumes a prima facie case showing, in light of the employer's

demonstration of the legitimate, no n - discriminatory, business

reason for the employment action taken, including the

Respondent's reliance on the validity of the facts produced by

the two investigations, which concluded that the wrongful

conduct leading to the disciplinary actions had indeed been

engaged in by the Petitioner, the Petitioner failed to

demonstrate that the asserted reason for the disciplinary action

taken was pretextual.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of rec ord, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the charge of

discrimination and petition for relief in its entirety.

DONE AND ENTERED this 30th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 30th day of July, 2004.

COPIES FURNISHED :

Cecil Howard, Gene ral 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

Linda G. Bon d, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

Matthew J. Wells, Esquire

Post Office Box 5606

Gainesville, Florida 32627 - 5606

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.