08-002834
Pinellas County Sheriff`s Office vs.
Jill Casey
Status: Closed
Recommended Order on Friday, February 6, 2009.
Recommended Order on Friday, February 6, 2009.
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.
- Date
- Proceedings
- 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: 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: 10/10/2008
- Proceedings: Unopposed Motion of Petitioner Pinellas County Sheriff`s Office to Allow Witness to Appear by Telephone 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: 07/14/2008
- Proceedings: Letter to B. Welling from J. Ciarciaglino regarding dates of hearing filed.
- 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.
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
-
Joseph M. Ciarciaglino, Esquire
Address of Record -
Benjamin R Welling, Esquire
Address of Record