09-000002 Emerald Coast Utilities Authority vs. Emmett R. Woods, Jr. Status: Closed Recommended Order on Friday, May 1, 2009.

Summary: Petitioner proved by pursuasive evidence that Respondent committed sexual harassment or misconduct and "conduct unbecoming . . ." by inappropriate touching and sexual utterances to a female co-worker. Termination is justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY, )

)

Petitioner, )

)

vs. ) Case No. 09-0002

)

EMMETT R WOODS, JR., )

)

Respondent. ) )

FINDINGS OF FACT AND RECOMMENDED CONCLUSIONS OF LAW

This cause came on for formal proceeding and hearing before

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

the Division of Administrative Hearings, pursuant to a contract

entered into by the Petitioner Agency and the Division of

Administrative Hearings, as provided in Section 120.65(7),

Florida Statutes (2008). After appropriate notice, the formal

hearing was conducted in Pensacola, Florida, on March 27, 2009.

The appearances were as follows:

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2958 Wellington Circle, North, Suite 200

Tallahassee, Florida 32308-6885

For Respondent: Emmett R. Woods, Jr., pro se

10601 Silver Creek Drive

Pensacola, Florida 32506

STATEMENT OF THE ISSUES :

The issues to be resolved in this proceeding concern

whether the Respondent is guilty of conduct which violates

certain provisions of the Emerald Coast Utilities Authority

(ECUA) policy manual, amounting to "conduct unbecoming a ECUA

employee" and "sexual harassment."

PRELIMINARY STATEMENT

This cause arose upon the results of an investigation

whereby the above-named Petitioner determined that its employee,

the Respondent, Emmett R. Woods, Jr., had violated the following

provisions of the ECUA Policy Manual: Section F-4(4) (conduct

unbecoming an ECUA employee) and Section F-4(24) (sexual

harassment). Specifically, the Respondent is alleged to have

engaged in sexual harassment of a co-employee, (a female), by

the name of Deni Deron. He is alleged to have engaged in

repetitive inappropriate touching of the complainant, Ms. Deron,

on almost a daily basis during October and November 2008, when

they worked for the Petitioner on the same work truck or "camera

truck." He is charged with reaching under her shirt, touching

her breasts, unclasping her bra through her shirt, grabbing her

crotch, and inappropriate kissing. The investigation was

initiated when the complainant, Ms. Deron, made a written

statement of complaint on December 3, 2008.

The Respondent's defense is that, although some of the

conduct alleged was engaged in, it was consensual and that "me

and Deni did fool around some." He thus maintains that the

conduct was consensual and not uninvited by the complainant.

Upon conclusion of the investigation, the Petitioner

determined that cause existed for termination of the Respondent.

This was after a hearing had been conducted by the Petitioner in

order to afford the Respondent an opportunity to present facts

and argument in his defense, as part of the investigation. The

investigation was concluded with a letter issued to the

Respondent advising him that he would be terminated from his

position of employment, effective December 19, 2008. The

termination letter of December 18, 2008, advised the Respondent

of his right to have a hearing to contest his termination before

the Division of Administrative Hearings. The Respondent availed

himself of that opportunity and this hearing ensued.

The cause came on for hearing as noticed. The Petitioner

presented six witnesses and seven exhibits at the hearing. All

seven exhibits were admitted into evidence without objection.

The Respondent presented the testimony of six witnesses,

including the Respondent. No exhibits were offered into

evidence by the Respondent. The record of the proceeding was

preserved by tape recording, which has been supplied to the

undersigned. Based upon the testimony and evidence adduced at

the hearing of March 27, 2009, these Findings of Fact and

Conclusions of Law are now entered. Pursuant to the contractual

arrangement between the Division of Administrative Hearings and

the ECUA, no recommendation as to penalty is determined or made.

That determination is contractually reserved for the discretion

of the agency head.

FINDINGS OF FACT

1. The Petitioner, ECUA, is an agency of local government,

established pursuant to an enabling act of the Florida

Legislature at Chapter 81-376, Laws of Florida, as amended. It

is a "regional water supply authority" for purposes of Sections

163.01 and 373.1962, Florida Statutes (2008). It is thereby

given authority to supply utility services to persons and

businesses residing in a defined area in Escambia County,

Florida, including the provision of water and wastewater utility

service. It is authorized in that act to employ personnel to

secure the provision of such utility services and to regulate

the conditions and terms of their employment, their retention,

their hiring, and their termination, as well as other forms of

employee discipline. It has provided for such regulation of its

personnel through the adoption of a "Human Resources Policy

Manual" (Manual). That manual was adopted in accordance with

Part III, Chapter 112, Florida Statutes. The Petitioner also

has promulgated an "Employee Handbook," in evidence as ECUA

Exhibit Two. Page 32 of that Handbook addresses "rules of

conduct" and Rule 4 of those rules of conduct precludes an

employee from engaging in "conduct unbecoming a ECUA employee."

Sexual harassment is also prohibited, by Employee Handbook Rule

24, at page 32. Sexual harassment is then defined at Section A-

4, page 4 of the Human Resources Policy Manual, in evidence as

ECUA Exhibit 1.

2. Ms. Deni Deron was hired as a "Utility Worker I"

beginning on June 1, 2008. Nathan Thomas, a witness in this

case, was hired as a Utility Worker I on a permanent basis on

June 16, 2008. He had been a temporary worker before that time.

The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was

the supervisor of Ms. Deron and Mr. Thomas. Both were

probationary employees for six months after their hiring date.

3. The Respondent's job title was "Lead Worker," which is

a sort of foreman. He was assigned responsibility for a "camera

truck," a work truck carrying a television camera projection

apparatus, designed to use a television camera to observe inside

waste water mains, accessible at manholes, in order to determine

sources of leakage, breakage or other issues related to

wastewater main repair and maintenance.

4. Sometime in early October 2008, Ms. Deron, the

complainant, was assigned to the Respondent's camera truck, to

be supervised by him in the duties performed through the use of

that truck. Early in her period of assignment to the truck and

the company of the Respondent, probably on the first day, while

they were alone in the truck, the Respondent began kissing her

without her permission. This made her uncomfortable, although

she did not take any particular overt action about it at the

time. Later in that day, however, she told the Respondent that

it had made her feel uncomfortable and that he should leave her

alone and "be just friends." The Respondent behaved in a normal

fashion for the next couple of days and engaged in no harassment

of her. Thereafter, however, he began inappropriately touching

her on one occasion or another, principally while they were

riding in the work truck, on almost a daily basis. He engaged

in vulgar, sexually related conversation with her. This was

without her invitation, although she admittedly engaged in some

of such conversation with him as well. Such talk on her part,

however, was in a joking vein and was usually in a situation

where several employees were together at lunch, or on occasions

of that nature, when such joking conversation would begin, in

which she admittedly participated. This was not the situation

when the Respondent and Ms. Deron were alone in the work truck

and elsewhere on the job.

5. The Respondent engaged in inappropriate touching of

Ms. Deron on a frequent basis. He touched her by unclasping her

bra through her shirt, by unexpectedly running his hand beneath

her shirt and grabbing her breast, and at various times grabbing

her breast and crotch. All this activity was uninvited and

uninitiated by Ms. Deron. She was upset by it and did not enjoy

it, as her testimony shows, as corroborated by that of her co-

worker, Nathan Thomas, who observed much of the conduct. Nathan

Thomas, in fact, observed such conduct make her cry on a number

of occasions.

6. The Respondent alluded to his close relationship with

the director of their department and intimated to both Ms. Deron

and Mr. Thomas that he and the director fished together, were

good friends, and that he could get them fired if he chose.

7. Ms. Deron told Nathan Thomas about the Respondent's

conduct about two weeks after they had been assigned to his

truck (and he observed much of it as well). She told him that

she was going to try to video his conduct when it happened

again. Mr. Thomas described her demeanor as being upset and

crying at the time. In fact, Ms. Deron did use her video cell

phone to video some of the Respondent's inappropriate touching

and conduct, both physical and verbal. This was stored on an

ECUA computer and displayed to the undersigned, and all parties,

at the hearing. This tends to corroborate the testimony of

Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified

that he observed the Respondent touch Ms. Deron inappropriately,

in one way or another, approximately every other day.

8. Ms. Deron admitted that she did some flirting when she

first came to work at ECUA. She described it as being a

function of being single and was flirting mostly as a mechanism

to "fit in, in an all male staff." That fact, however, does not

obviate the clear import of her testimony, that of Nathan

Thomas, and that of Sharon Griffin.

9. Ms. Griffin is a Human Relations Generalist II, working

in employee relations for ECUA. She does recruiting, knows

Ms. Deron and helped her get hired and "processed-in" to her

job. Just before Thanksgiving in November 2008, she observed

Ms. Deron outside her office and had a conversation with her.

She noticed Ms. Deron appeared somewhat nervous and asked her

how she was getting along with an all male crew. At that point

they agreed to have a private talk within Ms. Griffin's office.

Ms. Deron at that point tearfully told her of the conduct of the

Respondent. Ms. Deron also gave Ms. Griffin access to the video

made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's

testimony is that Ms. Deron clearly appeared sincere and

genuinely upset about the matter and this helped to convince

Ms. Griffin that it was a truthful account of what had happened.

10. Nathan Thomas, in his testimony, stated that the

Respondent made him afraid for his job so he did not report what

he had observed. He testified that he felt, at first, that it

was not his place to report the Respondent's conduct. When he

saw how upset Ms. Deron was he apologized to her for not

reporting it, and realizes that he should have.

11. The Respondent's testimony, and that of his witnesses,

was to the general effect that Ms. Deron was not a "quiet

person" and freely engaged in sexually suggestive joking

conversation with them, and other workers, regarding sexual

matters such as "penis size" and how long it had been since one

had sex. The Respondent and his witnesses described Ms. Deron

as being flirtatious. The Respondent, for his part, testified

that "me and Deni did fool around" but the Respondent contends

that it was just flirting, was not forced and was consensual.

12. In considering the testimony of Ms. Griffin, Ms. Deron

and Mr. Thomas, versus that of the Respondent and the

Respondent's witnesses, it is observed that the Respondent's

witnesses are his co-workers, in a relationship that pre-dates

Ms. Deron's employment. Their testimony may cast Ms. Deron in a

less favorable light by inferring that the activity may have

been consensual. It does not establish that fact, however, and

does not refute the Respondent's perpetration of the above-

described conduct. They did not observe the conduct. Ms. Deron

and Mr. Thomas did observe it and the manner of its occurrence

is corroborated by Ms. Griffin's testimony. The testimony of

Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible

and worthy of belief and is accepted. It is thus established

that the inappropriate touching and other sexually-related

behavior, inflicted by the Respondent on Ms. Deron occurred in

the manner described above. It was not consensual.

13. Even if Ms. Deron attracted such behavior, or seemed

to invite it, based upon being somewhat flirtatious, the

behavior of the Respondent was still not appropriate and, by any

measure, constitutes sexual misconduct and harassment, occurring

in the course of employment. This is particularly so since the

Respondent occupied a position of superior power, as the

supervisor of Ms. Deron and Mr. Thomas, and in fact threatened

their employment, at least implicitly, if they revealed the

subject conduct.

14. Moreover, even if the Respondent's version were

somewhat true (which is not accepted), and Ms. Deron invited

this conduct, and was a willing participant in it, it is still a

violation of the above-referenced rules applying to ECUA

employees. Engaging in such conduct, even if consensual, on the

employer's truck, when attention should be paid to duties, and

with all the negative circumstances that such sexually-related

conduct can cause, displays extremely bad judgment on the part

of the Respondent. Such a lavish display of poor judgment, even

if the conduct did not amount to sexual harassment, clearly is

conduct unbecoming a ECUA employee within the meaning of the

Petitioner's above-referenced rule.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § 120.65(7), Fla. Stat. (2008) and the subject

contract.

16. The Petitioner has adopted personnel rules and

regulations and a code of ethics embodied in its Human Resources

Policy Manual. Those rules and regulations are adopted pursuant

to ECUA's authority provided in Chapter 81-376, Laws of Florida,

as amended. See also §§ 163.01 and 373.1962, Fla. Stat. (2008).

The code of ethics embodied in the Policy Manual is in accord

with Part III, Chapter 112, Florida Statutes.

17. The preponderant, persuasive, evidence, culminating in

the above Findings of Fact, establishes that the Respondent

engaged in conduct amounting to a violation of Section F-4(24)

of the Manual related to sexual harassment and has committed

conduct unbecoming an ECUA employee for purposes of Section F-

4(4) of the Manual.

18. There is no question that the above-found facts, based

upon preponderant, persuasive evidence, establish that the

Respondent engaged in blatant sexual misconduct or harassment

with regard to the incidents at issue. There is also no

question that such conduct is clearly conduct unbecoming an

employee of the ECUA for purposes of the above-cited rules and

policies.

19. In summary, it is concluded that the Respondent

violated the Policy Manual, rules and regulations referenced

above, in the manner alleged by the Petitioner. Accordingly, in

light of the contract between the Division of Administrative

Hearings and the Emerald Coast Utilities Authority, no penalty

is recommended, as it is the province of the Respondent's

employer, the Petitioner, and its Director, to determine what,

if any, disciplinary action is warranted, in light of the above

Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 1st day of May, 2009, in Tallahassee,

Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2009.

COPIES FURNISHED:

Richard C. Anderson, SPHR

Director of Human Resources &

Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514-0311

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514-0311

John E. Griffin, Esquire

Carson & Adkins

2958 Wellington Circle, North, Suite 200

Tallahassee, Florida 32308-6885

Emmett R. Woods, Jr.

10601 Silver Creek Drive

Pensacola, Florida 32506

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.