08-002834 Pinellas County Sheriff`s Office vs. Jill Casey
 Status: Closed
Recommended Order on Friday, February 6, 2009.


View Dockets  
Summary: Respondent violated Petitioner`s policies related to sexual harassment, hostile work environment, and respect towards colleagues. Discipline is warranted.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PINELLAS COUNTY SHERIFF'S )

12OFFICE, )

14)

15Petitioner, )

17)

18vs. ) Case No. 08-2834

23)

24JILL CASEY, )

27)

28Respondent. )

30)

31RECOMMENDED ORDER

33On October 21 through 23, 2008, an administrative hearing

42in this case was conducted in Largo, Florida, before William F.

53Quattlebaum, Administrative Law Judge, Division of

59Administrative Hearings.

61APPEARANCES

62For Petitioner: Benjamin R. Welling, Esquire

68Ford & Harrison LLP

72101 East Kennedy Boulevard

76Suite 900

78Tampa, Florida 33602-5133

81For Respondent: Joseph M. Ciarciaglino, Esquire

87Ciarciaglino, Gell & Fiorentino, P.A.

926671 13th Avenue North, Suite 1B

98St. Petersburg, Florida 33701

102STATEMENT OF THE ISSUE

106The issue in this case is whether Jill Casey (Respondent)

116violated personnel rules adopted by the Pinellas County

124Sheriff's Office (Petitioner), and, if so, what penalty should

133be imposed.

135PRELIMINARY STATEMENT

137In June 2008, the Petitioner notified the Respondent of the

147imposition of an employment disciplinary action based on

155violations of certain personnel rules. Specifically, the

162Respondent was accused of violating the Petitioner's sexual

170harassment policy and of making comments towards subordinates

178that were "disrespectful, discourteous, and unprofessional."

184The disciplinary action included a seven-day suspension,

191demotion and transfer from the employment position, and

199completion of "sensitivity training." The Respondent filed a

207Notice of Appeal. The Petitioner forwarded the appeal to the

217Division of Administrative Hearings, which scheduled and

224conducted the administrative hearing.

228At the hearing, the Petitioner presented the testimony of

23716 witnesses and had Exhibits numbered 1 through 12 admitted

247into evidence. The Respondent testified on her own behalf,

256presented the testimony of 17 witnesses and had Exhibits 1, 3,

2674, 6, 7, 8, 10, 13 through 17, and 19 admitted into evidence.

280A Transcript of the hearing was filed. The parties filed

290Proposed Recommended Orders that have been reviewed in the

299preparation of this Recommended Order.

304FINDINGS OF FACT

3071. At all times material to this case, the Respondent has

318been employed as a supervisor within the Petitioner's Child

327Protection Investigations Division (CPID).

3312. She was initially employed in 1991 as a detention

341deputy at the county jail. She became an investigator with the

352CPID in 1999 and became a supervisor in 2001.

3613. In 2002, the Respondent was admonished by Captain

370Dennis Fowler regarding a complaint of "inappropriate touching"

378that had been voiced against the Respondent by Kelly Johnson

388(Ms. Johnson), a CPID field trainer.

3944. The Respondent was Ms. Johnson's supervisor.

401Ms. Johnson had been the acting supervisor of the unit prior to

413the Respondent's assignment.

4165. Ms. Johnson testified at the hearing that the

425Respondent was a "touchy-feely person in general" and that there

435were routine shoulder touches during greetings. She also

443testified that the Respondent would routinely stand behind her

452and lean over the Respondent's desk at which time the

462Respondent's breasts would press against Ms. Johnson's back.

4706. Ms. Johnson also testified that the Respondent had

479inappropriately placed her hand on Ms. Johnson's thigh in 2002.

489She testified that as the two women sat in rolling office chairs

501across from each other to discuss a case Ms. Johnson was

512handling, the Respondent placed the Respondent's hand on

520Ms. Johnson's inner thigh within a few inches of her groin and

532left it there for up to 30 seconds.

5407. Ms. Johnson shared the office space with four or five

551other employees and testified that one employee, a male, was in

562the office at the time of the alleged incident and was seated

574and facing towards the wall.

5798. Ms. Johnson testified that she also discussed the thigh

589incident with various Sheriff's Department officials and with

597her husband. She also testified that she reported her concerns

607about the Respondent's physical behavior, including the thigh-

615touching allegation, to another CPID supervisor, Jayne Johnson,

623who apparently relayed at least some portion of the complaint to

634Captain Fowler.

6369. Ms. Johnson testified that she directly reported the

645allegations to Captain Fowler, but she did not file an official

656complaint about any of her allegations.

66210. Captain Fowler testified that he was unable to recall

672the conversation with Ms. Johnson.

67711. At the hearing, the Respondent denied that she touched

687Ms. Johnson's thigh.

69012. Although Ms. Johnson testified that she believed the

699thigh-touching incident was intentional and that she was

707extremely uncomfortable with the situation, she made no attempt

716to stop the Respondent at the time or to seek assistance from

728the other employee who was allegedly present in the room at the

740time. Ms. Johnson's testimony regarding the thigh-touching

747incident is not credible and is rejected.

75413. Ms. Johnson testified that at a time when the office

765furniture was being re-arranged to accommodate another desk, she

774positioned her desk so as to have her back towards the wall in

787an effort to prevent the Respondent from standing behind the

797witness. She testified that she would also pull out the writing

808tray on her desk and place her trash can under the writing tray

821to block the Respondent from coming around behind her. She

831testified that despite her efforts, the Respondent would

839sometimes push the writing tray into the desk and sit down on

851the trash can to meet with her.

85814. Captain Fowler testified that after talking with Jayne

867Johnson, he understood the complaint to involve the Respondent

876leaning over Ms. Johnson and physically placing her body against

886Ms. Johnson's. Captain Fowler was unable to recall discussing

895the matter with Ms. Johnson. He testified that there may have

906been "some other specific references to inappropriate touching,"

914but that he was unable to recall particular details.

92315. It is reasonable to presume that had the complaints

933relayed to Captain Fowler included the allegation that the

942Respondent had placed her hand on Ms. Johnson's inner thigh

952within a few inches of her groin and left it there for upwards

965of 30 seconds, Captain Fowler would have recalled the

974information.

97516. Captain Fowler testified that he discussed the matter

984with the Respondent and recalled that the Respondent was

993cautioned about the failure to recognize personal boundaries of

1002other employees. Captain Fowler believed that the Respondent

1010understood that such behavior was not appropriate in the

1019workplace.

102017. Neither Ms. Johnson's verbal complaint nor Captain

1028Fowler's meeting with the Respondent was documented. The

1036Respondent's job performance evaluations did not make any

1044reference to the complaint or to its disposition.

105218. Ms. Johnson subsequently transferred out of the

1060Respondent's unit.

106219. Rebecca Wilkinson was an employee of the CPID working

1072in the same office building as did the Respondent.

108120. Ms. Wilkinson testified that, in 2002, as she stood in

1092a copy room punching holes in paper, the Respondent passed

1102through the copy room and intentionally "rubbed" Ms. Wilkinson's

1111buttocks as she passed by. Ms. Wilkinson did not know who the

1123Respondent was at that time.

112821. Because the copiers were located in an area between

1138offices, employees often passed through the area as they moved

1148between offices. Ms. Wilkinson testified that there was

1156sufficient room in the area to pass without physical contact.

116622. Ms. Wilkinson testified that when the incident

1174occurred, she reacted by stating "did you just fucking grab my

1185ass?" Ms. Wilkinson testified that the Respondent did not

1194reply, but smiled or "smirked" at Ms. Wilkinson and exited the

1205area.

120623. Ms. Wilkinson testified that she was very

1214uncomfortable with the contact. Despite her alleged discomfort

1222that an apparent stranger inside the CPID offices had rubbed her

1233buttocks, she did not report the incident at that time to

1244anyone.

124524. The Respondent denied that the incident occurred.

125325. Ms. Wilkinson also testified that, at some point

1262between May and August of 2006, the Respondent stood behind

1272Ms. Wilkinson, who was seated at her desk, leaned against

1282Ms. Wilkinson and pressed her breasts into Ms. Wilkinson's back.

1292Ms. Wilkinson apparently was aware of the Respondent's identity

1301by this time. Ms. Wilkinson testified that as she shifted to

1312move away from the Respondent, the Respondent moved with her and

1323maintained the contact, leading Ms. Wilkinson to believe that

1332the contact was intentional. Although Ms. Wilkinson testified

1340that she was "amazingly shocked" with the contact, to the extent

1351that she was unable to tell the Respondent to stop, she did not

1364report the incident at that time.

137026. At all times material to this case, Wandahka Goodridge

1380was employed as a CPID Supervisor in a position similar to that

1392of the Respondent. Ms. Goodridge has known and worked with the

1403Respondent for approximately 15 years.

140827. Ms. Goodridge testified that the Respondent would

1416routinely touch people during greeting, but that there were

1425other incidents of "vivid and significant" physical contact with

1434which Ms. Goodridge said she was uncomfortable.

144128. Ms. Goodridge recalled an incident "four or five years

1451ago" where, as she stood with her back approximately one to one

1463and one-half feet from an office wall, the Respondent passed

1473between Ms. Goodridge and the wall, brushing her chest against

1483Ms. Goodridge's back as she passed, even though there was

1493sufficient space in front of Ms. Goodridge for the Respondent to

1504pass without contact. Ms. Goodridge testified that she felt

1513uncomfortable with the circumstances of the incident, believing

1521it to be sexual in nature, and began to question her perception

1533of the Respondent's routine physical contact.

153929. Ms. Goodrich also testified to an incident "prior to a

1550year and a half ago but less than three and a half years ago"

1564where the Respondent intentionally brushed by Ms. Goodridge in a

1574hallway in a manner that Ms. Goodridge described as "much more

1585. . . intense than the first body contact." Ms. Goodridge

1596testified that the Respondent contacted Ms. Goodridge's buttocks

1604with her "pelvic area," which she interpreted as a sexual

1614advance.

161530. Ms. Goodridge testified that she thereafter began to

1624attempt to "protect herself" from the Respondent by avoiding

1633being in confined areas with the Respondent and keeping her back

1644towards the wall if the Respondent was present. Ms. Goodridge

1654thereafter perceived a lack of personal acknowledgement from the

1663Respondent and testified that she felt angry because she

1672believed that the Respondent was not speaking to her.

168131. The Respondent denied making any sexual advance or

1690engaging in any such behavior towards Ms. Goodridge.

169832. Despite Ms. Goodridge's belief that the alleged

1706physical contact was intentional and sexual in nature, she

1715failed to report either incident at the times they allegedly

1725occurred.

172633. It would be reasonable to expect that Ms. Goodridge, a

1737supervisor within a law enforcement unit assigned the

1745responsibility for conducting child protection investigations,

1751would have noted the alleged behavior at the time it occurred

1762and would have taken appropriate action to document the behavior

1772or to verbally report the behavior to appropriate department

1781authorities. Ms. Goodridge's testimony as to the alleged

1789incidents was not credible and is rejected.

179634. In January of 2008, the CPID was engaged in changing

1807shift assignments through a seniority-based bidding system. On

1815the morning of January 24, 2008, Ms. Wilkinson and Ms. Goodridge

1826were in the office together and were discussing the impending

1836changes in shift assignments.

184035. Ms. Wilkinson was unhappy with the proposed alteration

1849of her work shift assignment from day shift to night shift.

186036. She had discussed the issue with her sergeant

1869(Hunchel), who called the Respondent and asked whether the

1878Respondent was willing to trade shifts with Ms. Wilkinson. The

1888Respondent declined to do so.

189337. Approximately two hours after the call from the

1902sergeant to the Respondent, Ms. Wilkinson, crying, directly

1910telephoned the Respondent to ask if the Respondent was willing

1920to trade shifts. The Respondent again declined to do so.

193038. Ms. Wilkinson and Ms. Goodridge both testified that

1939during their January 24th conversation, they discussed their

1947discomfort with the Respondent's physical contact and alleged

1955rumors of the Respondent's alleged behavior towards other

1963employees.

196439. After the conversation ended, Ms. Goodridge took her

1973car keys, left the office, entered her car, and began to drive

1985around the office parking lot in an apparent panic. As she

1996drove, she called a co-worker, Joan Trifilo, and reported the

2006alleged conversation with Ms. Wilkinson. Then, without exiting

2014from the parking lot, Ms. Goodridge returned her car to a

2025parking space and saw Jayne Johnson exiting from her vehicle.

203540. Ms. Goodridge began questioning Jayne Johnson as to

2044whether she was aware of allegations of inappropriate touching

2053by the Respondent. The two women returned to the office

2063building, whereupon Ms. Goodridge went to Lieutenant George

2071Steffen's office and reported her complaint to him.

207941. Shortly thereafter on the afternoon of the same day,

2089Ms. Wilkinson was summoned to the office of Lieutenant Steffen

2099to discuss the Respondent's alleged behavior. Both

2106Ms. Goodridge and Ms. Wilkinson provided written statements to

2115Lieutenant Steffen on January 25, 2008, and the Respondent

2124became aware on that date of the investigation into the

2134allegations.

213542. The investigation eventually resulted in the dispute

2143at issue in this proceeding.

214843. At the hearing, various other employees credibly

2156testified that the Respondent pressed her chest against their

2165backs as the employees were seated at their workspaces and

2175materials on the desktop or computer screen were reviewed.

218444. While some of the witnesses, but not all, perceived

2194the contact as intentional and sexual in nature, there was

2204sufficient credible testimony to establish that the Respondent

2212committed such contact with regularity after the 2002 meeting

2221between Captain Fowler and the Respondent.

222745. CPID Investigator Viangelie Rodriguez was one of the

2236additional witnesses who testified that the Respondent pressed

2244her chest against the witness' back as the witness was working

2255at her desk. Ms. Rodriguez also testified, credibly, that

2264during a conversation regarding placement of a child for which

2274Ms. Rodriguez was responsible, the Respondent told her that she

2284was "fucking placing the child in the home" as directed by the

2296Respondent. Ms. Rodriguez was offended by what she considered

2305to be the Respondent's unprofessional language in dealing with

2314the situation.

231646. CPID Investigator Sarah Pierce testified that, after

2324dyeing her hair a different color, Ms. Pierce passed an office

2335where the Respondent sat with another CPID supervisor and that

2345the Respondent saw her and loudly stated that her new hair color

2357made her "look like a slut." Ms. Pierce heard the other

2368supervisor speak to the Respondent and heard the Respondent

2377indicate that she was permitted to make the statement.

238647. Ms. Pierce, who testified that the incident made her

2396feel "degraded" and "belittled," reported it to her supervisor,

2405Msifilo, and to Sergeant Robert Mosley. Rather than file an

2415official complaint, Ms. Pierce decided to address the matter

2424directly with the Respondent, and the two women subsequently

2433discussed the incident. Ms. Pierce testified that the

2441Respondent apologized to her during the discussion.

244848. Sergeant Mosley also discussed the incident with the

2457Respondent and advised her it had been inappropriate, a

2466conclusion with which the Respondent admittedly concurred.

247349. Nonetheless, the Respondent was again verbally abusive

2481towards Ms. Pierce when, during a later discussion related to

2491case management, the Respondent called Ms. Pierce a "stupid

2500shit." The discussion was conducted on a speakerphone and other

2510CPID employees were present and involved.

251650. Ms. Pierce reported the comment to Sergeant Mosley

2525and, thereafter, filed a formal complaint. The Petitioner's

2533investigation into the complaint formed the basis for a portion

2543of the dispute at issue in this proceeding.

255151. The Respondent admitted the verbal incidents about

2559which Ms. Pierce testified.

256352. Jesteen Stewart testified that on more than one

2572occasion, the Respondent passed the witness and made contact

2581with the witness' body. Such contact included the Respondent's

2590arm being placed on Ms. Stewart's waist and the Respondent's

2600hands being placed on Ms. Stewart's hips.

260753. Ms. Stewart also testified that the Respondent rubbed

2616the witness' buttocks and pressed her body against the witness

2626while passing in a hallway, at which time the witness, who

2637previously believed the contact to have been accidental, became

2646convinced it was intentional and sexual in nature. She reported

2656her concern to Msifilo, who testified that Ms. Stewart was

2666distraught during the conversation.

267054. Although the Respondent denied rubbing her hands on

2679any employee's buttocks, she stated that she may have placed her

2690hands on someone to move them out of the way so that she could

2704pass through a doorway.

270855. The evidence establishes that the Respondent

2715inappropriately placed her hands on Ms. Stewart's buttocks to

2724force Ms. Stewart to move, a gesture that for reasons personal

2735to Ms. Stewart, was interpreted by her as sexual in nature.

274656. There is no evidence to suggest any reason that the

2757Respondent could not have requested that Ms. Stewart move from

2767the Respondent's path if Ms. Stewart blocked passage.

277557. Ms. Stewart subsequently minimized her interaction

2782with the Respondent and would route her travel through the

2792building to avoid passing near the Respondent's office. At

2801times, she called in sick to avoid working with the Respondent

2812and, eventually, was transferred to another shift to eliminate

2821the contact with the Respondent.

282658. Pamela Wright, a child protective investigator who has

2835worked with the Respondent, testified that at some time in 2000,

2846while she was eating grapes, the Respondent picked up some of

2857the grapes and threw then towards Ms. Wright's chest, in an

2868attempt to toss them inside Ms. Wright's shirt. Ms. Wright

2878believed the behavior to be sexual in nature because the grapes

2889were thrown towards her breasts. She reported the incident to

2899Laurie Gray, her supervisor. The Respondent could not recall

2908the grape-tossing incident involving Ms. Wright.

291459. Ms. Wright also testified that the Respondent would

2923sometimes massage her shoulders or rub her back, and the contact

2934made her sufficiently uncomfortable to cause Ms. Wright to make

2944various efforts to minimize being in the vicinity of the

2954Respondent, but she did not file a complaint against the

2964Respondent about the physical contact.

296960. Samantha Krenek, who has been employed for the

2978Petitioner as a child protective investigator for about four

2987years, testified that shortly after beginning her employment,

2995she approached the Respondent, seeking to either have a document

3005signed or notarized, at which time the Respondent placed her

3015hand on Ms. Krenek's hip and left it there for a few seconds.

3028Ms. Krenek believed the contact to be somewhat sexual and

3038intentional because there was no need for the contact to have

3049occurred.

305061. Ms. Krenek was uncomfortable with the contact and

3059thereafter attempted to reduce her interactions with the

3067Respondent by locating other supervisors to perform certain

3075tasks, or by maintaining physical distance from the Respondent

3084if there were no other supervisors available.

309162. At the hearing, the Respondent generally denied that

3100she made sexual advances or had sexually harassed any of the

3111testifying employees of the CPID.

311663. The Respondent testified that she was not aware that

3126she was pressing her chest against the backs of seated employees

3137while reviewing their work with them at their desks and

3147attributed the contact to the limited space in the office.

315764. It is not plausible to believe that the Respondent's

3167chest and breasts would be pressed against the back of another

3178employee without the Respondent's knowledge, or that the entire

3187office was so small as to preclude reviewing materials or

3197computer screens with seated employees without making physical

3205contact with them. The Respondent's testimony explaining the

3213reason for the contact was not credible and is rejected.

322365. The Respondent engaged in a pattern of physical

3232contact and behavior directed towards some CPID employees. The

3241Respondent was cautioned about such contact in 2002 based on the

3252complaint of another employee and, thereafter, was presumably

3260aware that some employees were offended or intimidated by the

3270behavior. Nonetheless, the Respondent continued to make

3277physical contact with other employees, at least some of whom

3287were offended or intimidated by the behavior.

329466. The evidence also establishes that the Respondent

3302spoke disrespectfully to several employees, including

3308Ms. Rodriquez and Ms. Pierce, and did so even after having been

3320warned that her behavior was inappropriate.

3326CONCLUSIONS OF LAW

332967. The Division of Administrative Hearings has

3336jurisdiction over the parties to and subject matter of this

3346proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

335468. The Petitioner has the burden of proving by a

3364preponderance of the evidence the allegations underlying the

3372disciplinary action at issue in this proceeding. Florida Dept.

3381of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778

3391(Fla. 1st DCA 1981).

339569. Pinellas County Sheriff's Office General Order 3-1.1,

3403Rule and Regulation 5.16, provides as follows:

3410Sexual Harassment and Discrimination--No

3414member of this agency or member of the

3422public shall be subjected to unsolicited and

3429unwelcome conduct by another member which

3435includes references to that member's

3440religion, color, race, national origin, age,

3446disability, gender, pregnancy, sexual

3450orientation, marital, or any protected

3455status. The Pinellas County Sheriff's

3460Office prohibits any offensive physical,

3465written, or spoken conduct regarding any of

3472these items including conduct of a sexual

3479nature, as defined in paragraphs B, 1 and 2

3488of the definition of sexual harassment in

3495General Order 3-4, Discrimination, Sexual

3500Harassment, and Hostile Work Environment.

3505Additionally, no member shall engage in or

3512knowingly be a party to the creation of, or

3521continuation of a hostile work environment,

3527as defined in General Order 3-4,

3533Discrimination, Sexual Harassment, and

3537Hostile Work Environment.

354070. The referenced definition of "discrimination" states

3547as follows:

3549Any and all slurs, insults, ridicule,

3555epithets, anecdotes, or jokes, whether

3560verbal, by gesture, or written, pertaining

3566to religion, race, national origin, gender,

3572age, pregnancy, disability , sexual

3576orientation, marital, or any protected

3581status whether made in the course of general

3589conversation or specifically directed at one

3595or more members. This includes comments

3601about national origin, race, age, body,

3607disability, or appearance where such

3612comments go beyond mere courtesy; i.e.

3618telling "dirty jokes" or making offensive

3624sexually oriented comments, innuendoes, or

3629other epithets slurs, negative stereotypes,

3634or similar statements or actions that are

3641unwanted and considered offensive.

364571. The referenced definition of "sexual harassment"

3652states as follows:

36551. All unwelcome or unwanted advances ;

3661including sexual advances or unwanted sexual

3667attention, whether between person(s) of the

3673opposite or same sex. This includes, but is

3681not limited to, leering, touching, patting,

3687brushing against , hugging, kissing,

3691fondling, or any other similar physical

3697contact, or quid pro quo arrangements (i.e.

3704a situation in which an employee is forced

3712to engage in unwanted sexual conduct in

3719order to protect or advance his/her job).

37262. Unwelcome requests or demands for

3732favors, including sexual favors. This

3737consists of subtle or blatant expectations,

3743pressures, or requests for any type of

3750favor, including sexual favor, including

3755unwelcome requests for dates, whether or not

3762the request is accompanied by an implied or

3770stated promise or preferential treatment or

3776negative consequences.

37783. Inappropriate third party comments or

3784one time comments made which do not

3791constitute a hostile work environment,

3796language not directed at the offended

3802member, jokes (spoken, printed or drawn)

3808that are not directed at the offended member

3816or joint banter of a sexual or offensive

3824nature in which the offended member may or

3832may not be a party. (Emphasis supplied)

383972. The referenced definition of "hostile work

3846environment" states as follows:

3850Behavior that has the purpose or effect of

3858unreasonably interfering with the members

3863work performance which creates an

3868intimidating, hostile or offensive work

3873environment. Factors may include but not

3879[be] limited to frequency of the

3885discriminatory act, severity, whether it is

3891physically threatening or humiliating , and

3896whether it was sufficiently severe or

3902pervasive to alter the member's work

3908environment.

3909Creating a work environment that is

3915intimidating, hostile, abusive, or offensive

3920because of unwanted conversations,

3924suggestions, requests, demands, physical

3928contacts or attentions, whether sexually

3933oriented or otherwise related to a

3939prohibited form of harassment.

3943The distribution, display, or discussion of

3949any written or graphic material, including

3955calendars, posters, cartoons, or names

3960slandering character or reputation, show

3965hostility or aversion toward an individual

3971or group because of race, color, religion,

3978age, sex, pregnancy, national origin,

3983disability, marital, or other protected

3988status.

3989Factual assessment of a member's skills,

3995abilities, or performance by a training

4001officer, supervisor, or member of a chain of

4009command, does, not constitute the creation

4015of a hostile work environment. (Emphasis

4021supplied)

402273. Violation of Pinellas County Sheriff's Office General

4030Order 3-1.1, Rule and Regulation 5.16, is classified as a "Level

4041Five" violation.

404374. The evidence establishes that the Respondent committed

4051acts of sexual harassment and created a hostile work environment

4061by pressing her chest against the backs of seated coworkers as

4072she leaned over them to review materials on their desks or

4083computer screens. The evidence establishes that the Respondent

4091was warned of the behavior in 2002 by Captain Fowler and that

4103she nonetheless continued the behavior.

410875. The fact that not all employees were uncomfortable

4117with physical contact with the Respondent (including the chest-

4126pressing and hip-touching behavior) and that some believed it to

4136be more a form of personal greeting rather than sexual in

4147nature, does not establish that those employee who felt

4156otherwise had no reasonable basis for their personal reaction to

4166the behavior. The Respondent clearly had reason to know that

4176the physical gestures were not welcomed by all CPID employees.

418676. The evidence establishes that the Respondent committed

4194an act of sexual harassment by placing her hands on

4204Ms. Stewart's buttocks. Such behavior created a hostile work

4213environment because the contact affected Ms. Stewart's ability

4221to freely perform the responsibilities of her employment.

422977. The evidence establishes that the Respondent committed

4237an act of sexual harassment by placing her hand on Ms. Krenek's

4249hip. The behavior also created a hostile work environment

4258because the contact affected Ms. Krenek's ability to freely

4267perform the responsibilities of her employment.

427378. The Respondent testified at the hearing that she was

4283unaware until the internal investigation in this matter that

4292some employees felt she routinely invaded personal space. The

4301Respondent testified that she believed the behavior was an

4310attempt to compensate for an alleged hearing loss. The

4319testimony is not credible and is rejected.

432679. Although there is no evidence that the Respondent's

4335hearing loss does not exist, to accept the Respondent's

4344assertion that her hearing loss was sufficient to prevent her

4354from hearing normal office conversation, it would be reasonable

4363to expect that the Respondent would have frequently moved around

4373a room so as to be close to whichever person was speaking, but

4386there is no evidence that the Respondent did so.

439580. Pinellas County Sheriff's Office General Order 3-1.3,

4403Rule and Regulation 3.5, provides as follows:

4410Conduct towards Superior and Subordinate

4415Officers and Associates--Members shall treat

4420supervisors, subordinates, and associates

4424with respect and candidness. They shall be

4431courteous and civil at all times in their

4439relationships with one another. When on

4445duty, and particularly when in the presence

4452of the public, deputies should be referred

4459to by rank.

446281. Violation of Pinellas County Sheriff's Office General

4470Order 3-1.3, Rule and Regulation 3.5, is classified as a "Level

4481Three" violation.

448382. The evidence establishes that the Respondent failed to

4492treat coworkers courteously, civilly, and respectfully,

4498specifically as to the statements made to Ms. Rodriguez and

4508Ms. Pierce and the tossing of grapes at Ms. Wright's chest.

451983. The Respondent suggested several motives for the

4527various persons involved in filing or prosecuting the complaints

4536against her.

453884. The Respondent testified her role in resolving a

"4547missing cases" situation within the unit supervised by Wanda

4556Goodridge in 2001 was the underlying reason for Ms. Goodridge's

4566involvement in this case, but the reason for Ms. Goodridge's

4576involvement is immaterial because her allegations have not been

4585credited.

458685. Similarly, the Respondent suggested that her

4593assignment in 2001 as supervisor for the backlog unit where

4603Ms. Johnson was employed, who had been the acting supervisor and

4614who was allegedly unhappy with the Respondent's level of

4623supervision, explained why Ms. Johnson voiced her complaint in

46322002. Ms. Johnson's accusation that the Respondent touched her

4641thigh has been rejected. Ms. Johnson's complaint about the

4650Respondent's routine chest-to-back contact is clearly supported

4657by other evidence.

466086. Further, the incidents that the Respondent cites as

4669precipitating the Goodridge and Johnson participating in the

4677investigation at hand preceded the initiation of this dispute by

4687approximately seven years.

469087. The Respondent suggested that she has a strong

4699personality as do other employees within the CPID and that

4709personality clashes were the reason this matter had been

4718pursued. Although there are clearly personal issues between

4726various CPID employees, the reason for the imposition of

4735discipline in this case is not personality differences, but the

4745Respondent's violations of the Petitioner's employment policies.

475288. Finally, the Respondent, an openly gay female,

4760asserted that this disciplinary action was the result of

4769homophobia by certain employees within the CPID. The evidence

4778fails to support the assertion. Knowledge of the Respondent's

4787orientation appeared to be widespread and of long-standing. It

4796is reasonable to assume that such homophobia, assuming its

4805existence, would have resulted in the filing of complaints long

4815ago, since the activities about which credible evidence was

4824presented have extended over a period of years.

4832RECOMMENDATION

4833Based on the foregoing Findings of Fact and Conclusions of

4843Law, it is RECOMMENDED that the disciplinary action taken by the

4854Petitioner against the Respondent be sustained.

4860DONE AND ENTERED this 6th day of February, 2009, in

4870Tallahassee, Leon County, Florida.

4874S

4875WILLIAM F. QUATTLEBAUM

4878Administrative Law Judge

4881Division of Administrative Hearings

4885The DeSoto Building

48881230 Apalachee Parkway

4891Tallahassee, Florida 32399-3060

4894(850) 488-9675

4896Fax Filing (850) 921-6847

4900www.doah.state.fl.us

4901Filed with the Clerk of the

4907Division of Administrative Hearings

4911this 6th day of February, 2009.

4917COPIES FURNISHED :

4920Joseph M. Ciarciaglino, Esquire

4924Ciarciaglino, Gell & Fiorentino, P.A.

49296671 13th Avenue North, Suite 1B

4935St. Petersburg, Florida 33701

4939Benjamin R. Welling, Esquire

4943Ford & Harrison LLP

4947101 East Kennedy Boulevard

4951Suite 900

4953Tampa, Florida 33602-5133

4956James L. Bennett, County Attorney

4961Office of the County Attorney

4966315 Court Street

4969Clearwater, Florida 33756

4972NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4978All parties have the right to submit written exceptions within

498815 days from the date of this Recommended Order. Any exceptions

4999to this Recommended Order should be filed with the agency that

5010will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/06/2009
Proceedings: Recommended Order
PDF:
Date: 02/06/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/06/2009
Proceedings: Recommended Order (hearing held October 21-23, 2008). CASE CLOSED.
PDF:
Date: 12/16/2008
Proceedings: Written Certification of Notary Public for Telephonic Testimony of Dennis Fowler filed.
PDF:
Date: 12/16/2008
Proceedings: Notice of Filing of Written Certification of Notary Public for Telephonic Testimony of Dennis Fowler filed.
PDF:
Date: 12/09/2008
Proceedings: Petitioner`s Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
PDF:
Date: 12/09/2008
Proceedings: (Proposed) Findings of Fact filed by Respondent.
PDF:
Date: 12/09/2008
Proceedings: Notice of Filing filed.
PDF:
Date: 11/24/2008
Proceedings: Agreed Motion for Extension of Time to File Proposed Findings of Facts and Conclusions of Law filed.
Date: 11/07/2008
Proceedings: Transcript of Proceedings (Volumes 1-3) filed.
Date: 10/21/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/13/2008
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 10/13/2008
Proceedings: Joint Pre-hearing Statement filed.
PDF:
Date: 10/10/2008
Proceedings: Unopposed Motion of Petitioner Pinellas County Sheriff`s Office to Allow Witness to Appear by Telephone filed.
PDF:
Date: 09/16/2008
Proceedings: Notice of Unavailability in Jurisdiction filed.
PDF:
Date: 09/11/2008
Proceedings: Notice of Taking Deposition to Perpetuate Testimony for Trial filed.
PDF:
Date: 08/28/2008
Proceedings: Peitioner`s(sic) Responses and Objections to Respondent`s First Set of Interrogatories filed.
PDF:
Date: 08/28/2008
Proceedings: Petitioner`s Responses and Objections to Respondent`s Second Request for Production filed.
PDF:
Date: 08/25/2008
Proceedings: Respondent`s Notice of Service of Supplemental Answers to Interrogatories to Petitioner, Pinellas County Sheriff`s Office filed.
PDF:
Date: 08/08/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 21 through 24, 2008; 9:30 a.m.; Largo, FL).
Date: 08/07/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 07/31/2008
Proceedings: Respondent`s Response to Petitioner`s Request for Production filed.
PDF:
Date: 07/31/2008
Proceedings: Respondent`s Motion for Continuance filed.
PDF:
Date: 07/24/2008
Proceedings: Respondent`s Second Request to Produce to Petitioner filed.
PDF:
Date: 07/24/2008
Proceedings: Respondent`s Notice of Serving Interrogatories filed.
PDF:
Date: 07/14/2008
Proceedings: Letter to B. Welling from J. Ciarciaglino regarding dates of hearing filed.
PDF:
Date: 07/10/2008
Proceedings: Defendant`s Request to Produce to Plaintiff filed.
PDF:
Date: 06/30/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/30/2008
Proceedings: Notice of Hearing (hearing set for September 15 and 16, 2008; 9:00 a.m.; Largo, FL).
PDF:
Date: 06/26/2008
Proceedings: Petitioner Pinellas County Sheriff`s Office`s First Request for Production of Documents to Respondent Jill Casey filed.
PDF:
Date: 06/26/2008
Proceedings: Petitioner Pinellas County Sheriff`s Office`s First Set of Interrogatories to Respondent Jill Casey filed.
PDF:
Date: 06/24/2008
Proceedings: Notice of Attorney Address Change filed.
PDF:
Date: 06/24/2008
Proceedings: Joint Stipulation/Response to Initial Order filed.
PDF:
Date: 06/16/2008
Proceedings: Initial Order.
PDF:
Date: 06/16/2008
Proceedings: Sheriff`s Finding filed.
PDF:
Date: 06/16/2008
Proceedings: Interoffice Memorandum filed.
PDF:
Date: 06/16/2008
Proceedings: Notice of Appeal Request for Civil Service Board Review filed.
PDF:
Date: 06/16/2008
Proceedings: Agency referral filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
06/16/2008
Date Assignment:
06/16/2008
Last Docket Entry:
02/06/2009
Location:
Largo, Florida
District:
Middle
Agency:
Contract Hearings
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (2):