In the previous CJ's Street Report blogpost, Sheriff Morgan's retaliation against Deputy Ozell Powell was discussed. The blogpost emphasized two key points. One, after Deputy Powell filed an internal EEOC complaint against Sheriff Morgan, Sheriff Morgan personally ordered the initiation of an Internal Affairs investigation of Deputy Powell for stealing a $2.00 baseball card. That IA investigation found that the accusation by Sheriff Morgan was "unsubstantiated." And two, that such a retaliatory investigation was meant to punish Deputy Powell and intimidate other deputies.
But, this pattern of retaliation after filing a complaint of discrimination was not limited to Deputy Powell, an African American Army veteran with Multiple Sclerosis. Beyanca Cannon, a corrections officer and Black woman, filed a complaint against a senior officer and suffered retaliatory punishment. Rhonda Ray, a public information officer and white woman, filed a discrimination complaint and suffered from retaliatory actions. Former Lieutenant Laura Montoya, Colonel of Investigations and a Hispanic (Latina) woman, complained of racial and gender harassment, and was put under investigation. Mindy Pare, a white woman, was fired for missing one duty
assignment and claimed that she received a more severe punishment than
male deputies in the same situation. Master Deputy Jacquelyn Gulley, a Black woman, filed a complaint (I have not read it) and was put under Internal Affairs investigation for "liking" Facebook posts that were critical of Sheriff Morgan.
All five women, were outstanding law enforcement officers or correction officers. They claimed they experienced gender and/or racial harassment. They claimed they suffered mental duress and physical pain. Their careers were either terminated or jeopardized. And, after they filed a complaint, most of them were met with overt hostility from Sheriff Morgan by being placed under very stressful Internal Affairs investigations. Whether the IA investigations found that the accusations were substantiated or not is irrelevant. The IA investigations are seen as retaliatory and further evidence of racial and/or gender discrimination. At least four cases are under court ordered mediation. Only Deputy Gulley's complaint has not resulted in the filing of a state or federal lawsuit while it is under review inside the ECSO.
The evidence to be discussed below is drawn from court records and Internal Affairs investigation files. Since all these court cases or complaints are active, I have not interviewed any of the plaintiffs or complainants, or sought their perspectives. Any observations or conclusions drawn are my own.
That said, I think that when you find that five different women at five different times complaining of racial and/or gender discrimination and they are then subjected to retaliation via Internal Affairs investigation (or other investigation or near-immediate termination), then I believe you have the factual basis to conclude that there may be a pattern and practice of creating a hostile work environment for women of color (and women), a pattern and practice of racial and/or gender discrimination, and a pattern and practice of retaliation against those very same women. None of this apparently makes into the box score when judging the merits and qualifications of Sheriff Morgan's candidacy for office.
Sheriff Morgan joked that once you become a Sheriff your new job title is "Defendant." He laughed. But it is not a joking matter. These five women have suffered. Deputy Powell suffered. Undoubtedly, others have suffered in silence, too afraid to complain. Once a woman files a complaint to protect their rights, dignity, and career, it appears that the full force of the office of the Sheriff is dedicated to beating these women down into submission.
And, you the county taxpayers should not be laughing. At least four of these cases are under court-ordered mediation. There is a possibility that the Sheriff's Office is going to have to pay for its laughing, cavalier attitude towards racial and/or gender discrimination and creating and maintaining a hostile work environment.
Beyanca Cannon filed her lawsuit against Sheriff David Morgan and the Escambia County Board of Commissioners on August 28, 2014. Cannon, a Black woman who formerly worked as a corrections officer before being employed by the BOCC, is suing for at least $75,000 plus costs and interest.
She complained that since she was hired on February 14, 2011, she had been "mercilessly harassed and discriminated against by Lieutenant Reagan Phillips, who has since retired." She asserted that Phillips applied different standards to her compared to "white employees," demeaned her, and created a "hostile work environment" by inflicting "taunts by Phillips on an almost daily basis." As a result, she claimed she developed "Bruxism Clentching" which is the product of "severe stress" that causes migraine headaches which led to sleep deprivation. Cannon was the "subject of vicious rumors that she was 'too friendly' with inmates. These rumors, upon information and belief were created and spread by Phillips. Anonymous false reports were filed against Plaintiff and her car was shot into and the windows were broken. The false misconduct reports filed against Plaintiff were investigated and unsubstantiated."
In addition, "after filing several discrimination complaints against Phillips, Plaintiff began to receive unfair discipline on contrived allegations by the person she accused of racial harassment. On or around August 7, 2013, Plaintiff was retaliated against and suspended for 28 days without pay for a violation of a rule she did not commit. Plaintiff continues to work with for the Defendant Board and still deals with the residue of the treatment she was subjected to by Phillips."
Cannon's complaint further alleged Sheriff's Morgan own actions tolerating the racial harassment of her contributed to the racial harassment of Anita Hemphill. Her complaint stated, "Furthermore, Defendant Sheriff knowingly condoned and ratified the differential treatment of Plaintiff as more fully set forth above because it allowed the differential treatment and participated in same not only of the Plaintiff but of at least on other employee of the Defendant, Anita Hemphill." And, as we shall see below in the case of Laura Montoya, Montoya's involvement in the Hemphill case--under cover of protected speech--resulted in retaliatory disciplinary action against Montoya.
The federal court ordered mediation on November 29, 2014, for case 3:14cv439-MCR-CJK.
On July 2, 2015, Rhonda Ray, a white woman hired in 2001 as a public information officer, sued Sheriff Morgan for gender discrimination related to working in a "hostile work environment and retaliation for reporting the discriminatory acts."
Ray's complaint centers around the behaviors of David Craig, one of Sheriff Morgan's most trusted confidants who was hired in 2009 to work in the public information office, and Lt. Spears (a female) who was Ray's supervisor in the Community Relations Unit (CRU) and a later male supervisor. Craig and Spears created a hostile work environment so severe that Ray transferred to the Crime Stoppers Division. After Craig agreed not to harass Ray, Ray transferred back into the CRU in January 2011.
In February 2013, Ray transferred to the Public Information Office. In August 2013, Sheriff Morgan "personally tasked Plaintiff [Ray] with a video production assignment." Craig responded to this self-perceived slight by "harassing, bullying, threating [sic] with career suicide and demeaning" Ray. Ray reported this harassment directly to Sheriff Morgan and filed a complaint with the Human Resources Division. After being told by an unspecified person to keep the complaint to herself, Ray "was informed that her services on the Wanted Fugitives T.V. show, which she had been a part of
since 2005, were no longer needed."
In January 2014, the ECSO created a "position description" for a "Community Relations Coordinator" (CRC). According to the complaint, the position description matched the duties that Ray had fulfilled and "very few" if any of the tasks Craig had performed in the CRU. Both Ray and Craig interviewed for the position. Between January 2014 and March 2014, at least two people, including her then male supervisor and the personnel hiring committee, quizzed her on how she planned to balance her professional and personal lives. In April 2014, the position was awarded to Craig. And, despite having "essentially similar duties and responsibilities" Ray was paid less than a male Video Production Specialist. After filing her EEOC complaint, Ray has been "continually harassed and subject to a hostile work environment including having her office location changed and relocated." She was also punished with the lower amount of pay than her male colleague.
On May 23, 2016, the U.S. District Court had the case in mediation.
On March 3, 2016, Laura Montoya, a Hispanic, sued Sheriff David Morgan, Chief Deputy Eric Haines, Commander Ricky Shelby, and Captain Fred Alford for racial and gender discrimination, as well as illegal termination, and creating a hostile work environment. She was reduced in rank from Colonel to Lieutenant in November 2014 and then terminated on August 14, 2015. Up until the time she was terminated she was a "stellar employee" for more than 16 years.
She was promoted to Colonel on May 29, 2013, and served under Commander Shelby. Shelby told her soon after her promotion that "he did not agree with her promotion to Colonel of Investigations and the most she should be was a First Lieutenant because she was a woman." He then "routinely berated, cursed, yelled at and chastised" Montoya. Shelby kept important information about the budget and narcotics unit from on the grounds that a woman did not need to know those details. Shelby criticized her for talking "too much" in staff meetings and "not enough" in staff meetings.
Montoya took her concerns directly to Sheriff Morgan on a "number of occasions." She also told Sheriff Morgan that Shelby had other harassment issues with other women. Morgan, according to the complaint filed in U.S. District Court, advised her that he was "aware of the problems with Shelby because Colonel Hardy, a white male, had discussed similar problems he had with Shelby." The solution in the case of Colonel Hardy was to transfer Hardy to the Administration Division. Morgan advised Montoya to "'stay the course'" and that "he would 'deal with Commander Shelby.'"
Instead of transferring out and keeping her rank, as Colonel Hardy had done, in April 2014 Senior Commander Shelby provided Montoya with a "Notice of Performance Deficiencies" and in November 2014 Sheriff Morgan gave her the option of "voluntary demotion" or an "involuntary demotion," as well a list of "performance deficiencies."
Now reduced to her permanent rank of Lieutenant, Montoya then had her authority undermined by a reporting Lieutenant who had refused a direct order to release a suicide note to the next of kin. Chief Deputy Haines subsequently criticized Montoya's investigation of the insubordination incident and eventually the male Lieutenant was promoted to First Lieutenant.
Montoya, now voluntarily demoted to Lieutenant, transferred to Courthouse Security under Captain Fred Alford. Alford, according to the complaint, "has been the subject of numerous internal complaints, yet has never been demoted from his Captain rank."
On February 13, 2015, Montoya was subpoenaed to testify in a deposition in a lawsuit brought by Anita Hemphill against Sheriff Morgan as the sheriff regarding "racial and gender discrimination."
During the deposition lawyers for Hemphill asked for the documents Montoya had in a manila folder that she had intended to use to refresh her memory, if necessary. The two ECSO lawyers representing the Sheriff approved the release of the documents in the folder.
One of the documents in the folder was a November 2013 email from Chief Deputy Haines (defendant in this case) to Montoya regarding the Hemphill case in which the Chief Deputy instructed Montoya to "'please delete this after you review it.'"
Two months later (April 2015), Montoya was advised she was the subject of an Internal Affairs investigation for keeping the email from the Chief Deputy and for releasing the documents to Hemphill's lawyers. Also in April 2015, Montoya was advised that she was also under administrative investigation for "gender discrimination" against white male employees. Captain Alford contended that Montoya was assigning more overtime hours to female employees than male employees.
The gender discrimination charge was not substantiated. The "insubordination and improper dissemination of information were sustained." Instead of Level 4 punishment as recommended by Commander Tharp, 20 hours of suspension according to the ECSO's Disciplinary Matrix, Montoya was given Level 8, termination by the Disciplinary Review Board that was approved by Morgan.
However, in her federal complaint, Montoya's lawyer contended that destruction of the email would have violated at least three ECSO policies, if not the Florida Sunshine law, and, that when she testified under subpoena that was "protected speech," and that her complaint of racial and gender discrimination was also "protected speech."
Her lawyer contended that the "ESCO has engaged in a pattern and practice of discrimination. Other minority and female employees have been subjected to systemic discrimination within ESCO and have suffered adverse employment actions."
On May 16, 2016, a mere two months after filing her federal complaint, the U.S. District Court issued an order for mediation. The original complaint asked for a "trial by jury."
On January 21, 2014, Mindy Pare filed a gender discrimination lawsuit in the First Circuit Court of Florida. She alleged gender discrimination on the basis that she is "aware of other similarly situated male deputies that have missed their duty assignments and were not terminated" and that "Pare was disciplined more harshly than similarly situated male deputies."
Pare was hired as a deputy in January 2006 and in March 2011 she transferred from patrol to court security. One of her duties was to stand watch at the Juvenile Justice Center two weekends every six months. She missed the Sunday duty in June 2011 because she did not remember the assignment and had not been given the reminder email from her superior. In September 2011 she was terminated.
On March 18, 2016, the First Circuit Court issued a "Notice of Mediation Conference."
Deputy Gulley's complaint of gender discrimination or harassment is with the ECSO and has not been released in response to a public records request.
It is understood that some time after filing her complaint, she was the target of an Internal Affairs investigation for "liking" several Facebook posts that had been posted by former Chief Deputy Bill Chavers. The same "liking" of Chavers's posts was undertaken by then Deputy Donald 'Buddy' Nesmith Jr., now retired. He, too, was the target of an Internal Affairs investigation. In fact, both investigations were started on the same day and use identical language. Chavers's comments were highly critical of Sheriff Morgan and challenged the Sheriff's qualifications as a candidate for Sheriff.
On February 8, 2016, Sheriff Morgan commenced Internal Affairs investigations against Nesmith and Gulley for violating "General Order 236 Personal Use of Social Media, 236.1 Precautions & Prohibitions (1), (2)."
General Order 236.1(1) apparently deals with "Sexual Harassment" and states that "Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject the member to disciplinary action up to and including termination" (page 4 pdf).
General Order 236.1(2) deals with a general prohibition: "Members are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of the ECSO for which loyalty and confidentiality are important, impede the performance of duties, impair discipline and harmony among coworkers, or negatively affect the public perception of the Escambia County Sheriff's Office."
This area of the law--the free speech rights of a public employee--is quite complicated and depends upon the interpretation of several U.S. Supreme Court decisions which lower courts do not always get right. This is especially the situation when it involves sheriff deputies versus correctional deputies. Here I must rely upon lawyers and court decisions to explicate the delicate balancing tests necessary to establish the boundaries of constitutionally protected speech.
We begin with the established fact in Florida that by law and statute that sheriff deputies are appointed and can be terminated by the sheriff "at will." Though they are not public employees, it is arguable that they cannot be denied their constitutional rights of free speech on matters of "public concern."
In the Nesmith and Gulley Internal Affairs investigation, there is no doubt that Sheriff Morgan took umbrage at the comments of former Chief Deputy Bill Chavers.
The statement of "Findings," officially signed by First Lieutenant Carl Jones and Sergeant James Barnes, sounds like it was dictated by Sheriff Morgan.
The IA report summarized Chavers' comments and the reaction of Sheriff Morgan: "These comments challenge Sheriff Morgan's integrity and character. They state he is 'uncaring' and 'politically motivated.' They describe his administration as 'terrible,' and call him the 'face of evil.' They refer to him as 'King David,' and describe his term as Sheriff as a 'reign of terror.' They state he has 'no true experience and is the least qualified person to ever hold the office of Sheriff.' They state he is the 'worse [sic] person to ever hold the office of Sheriff' and 'possibly a bigger crook than his self claimed friend Sheriff Charlie Morris from Okaloosa County.' These comments have not been supported by evidence. They are egregiously disloyal, reckless, and maliciously untrue. They bring discredit upon the Sheriff and negatively affect the public perception of the ECSO. Gulley, a current member of the ECSO, clicked the 'Like' button on these public comments. Although she did not intend to offend the Sheriff or the ECSO with her actions, she did. If the Sheriff and other members of the ECSO found these actions offensive, it is not unreasonable to conclude that others did as well. These actions do not reflect favorably upon the Sheriff or the ECSO" (page 5 pdf).
On page 10 of the Gulley pdf document, the IA report goes into some detail into the meaning of the "Like" button on Facebook.
According to the IA report: "Clicking like is a form of speech because its use conveys a message. Just as flipping the middle finger is a form of speech, so too is giving a thumbs-up, or like. Facebook defines the like button as, 'a way to give positive feedback and connect with things you care about.' Gulley explained her use of like had several different meanings, but she did not hit like to show support for anything negative or disparaging against the Sheriff or ECSO. However, the Sheriff and other members of the ECSO, found her use of like offensive. Use of the like button is subjective. What one person might feel is an acceptable application of like, another person may not."
The case that is highly relevant here is Bland v. Roberts decided by the Fourth Circuit's Court of Appeals.
It is especially relevant because Facebook, Inc. filed an amicus curiae brief in favor of six plaintiffs who were fired after an election by the Sheriff of Hampton city in Virginia.
Facebook explained that it had a vital interest at stake in the case: "Facebook, for itself and its Users, has a vital interest in ensuring that speech on Facebook and in other online communities is afforded
the same constitutional protection as speech in newspapers, on television, and in the town square" (page 7 pdf). Thus, its intervention was a matter of serious financial and constitutional concern.
Facebook explained that a "like" was constitutionally protected speech. According to Facebook's brief (page 8 pdf), "When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment.... Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users."
Facebook (page 15 pdf) also explained that the lower district court had erred in its decision on whether a "like" was speech: "Contrary to the district court’s understanding, Liking a Facebook Page (or a non-Facebook website) is speech: it generates verbal statements and communicative imagery on the User’s Profile (or Timeline) Page – i.e., a statement that the User likes a particular Page, accompanied by the Page’s icon – as well as similar statements and imagery in the News Feeds of the User’s Friends."
Facebook (page 17 pdf) emphasized that the U.S. Supreme Court had stressed that speech during political campaigns was especially protected. On page 18 Facebook noted that the "use of social networking and other online communities to rally support for political candidates and causes is a contemporary example of quintessential political speech." Facebook pointed out that both the Republican National Committee and President Obama utilized Facebook to rally supporters.
Furthermore, Facebook noted that "Facebook thus provides a convenient and effective way for millions of voters to express support for the candidates of their choice and to become more personally involved in the political process as a result" (page 18 pdf).
Facebook argued that a simple "like" was protected speech and as such a basis for contesting an unlawful termination: "Carter’s Liking of the Adams campaign’s Facebook Page – and the statements that appeared on Carter’s Profile, in the News Feeds of Carter’s Friends, and on the campaign’s Page – was no different from telling friends that he supported Adams, putting an Adams bumper sticker on his car, or planting an Adams campaign sign in his front yard. Carter’s Like on Facebook can form the predicate of his claim against Roberts for unlawful termination" (page 21 pdf).
Facebook also noted that in order for a public employee's speech to be protected "'need only be upon a matter of public concern'" (page 21 pdf). Facebook (page 23 pdf) concluded its brief by noting that "The Supreme Court has held that the First Amendment protects the 'private expression of one’s views' from retaliatory employment action."
The American Civil Liberties Union also submitted an amicus curiae brief in support of the plaintiffs in Bland v. Roberts.
The ACLU wrote a vigorous defense of the plaintiffs and the use of a Facebook "Like" as an expression of substantive and symbolic speech that is constitutionally protected. The ACLU noted (pages 11-12), "'Liking' something on Facebook expresses a clear message – one recognized by millions of Facebook users and non-Facebook users – and is both pure speech and symbolic expression that warrants constitutional protection.... In this way, an individual who uses the 'Like' button is making a substantive statement. That is especially the case when a user “Likes” a political candidate, as that is a clear sign of support for that candidate.... Or if a user 'Likes' another user’s comment or post, he or she is expressing approval of the information conveyed by that other user."
The ACLU further argued that the U.S. Supreme Court in Pickering v. Board of Education protected speech by public employees on matters of public concern (page 21 pdf): "Public employees do not 'relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest'...The First Amendment thus protects the speech of public employees when they speak on matters of public concern."
The ACLU also argued that speech related to the qualifications of a sheriff for office were a matter of public concern and thus protected speech: "Indeed, this Court has repeatedly held that the subject matter of plaintiffs’ speech – the merits of a candidate for political office – is a matter of public concern....(speech regarding who was most qualified to be Sheriff is 'undoubtedly' protected). This case is no different. The campaign for the Sheriff’s office was the subject of a highly contentious and very public debate that dominated the community for a period of time" (page 24 pdf).
The ACLU pointed out that the Pickering balance test requires a Sheriff to provide evidence and substantiate that the operation of the Sheriff's Office was disrupted by the speech of his or her deputies: "That is especially true here because there has been no legitimate claim that plaintiffs’ speech caused any disruption to the Sheriff’s office or its ability to operate efficiently...(an employer wishing to defend against allegations of impermissible retaliation must present evidence that the speech actually interfered with the functioning of his office, and may not merely assert 'speculative and unsubstantiated' charges of disruptions)" (page 28 pdf).
The Fourth Circuit Court of Appeals apparently was convinced by Facebook, Inc.'s and the ACLU's amicus curiae briefs and other U.S. Supreme Court decisions that a "Like" was constitutionally protected speech. The Appeals Court reasoned (pages 41, 42, 44, 45): "Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.... Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression.... In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.... The Sheriff does not dispute that Carter’s speech, if it was speech, was made in his capacity as a private citizen.... And, it is well established that an employee can speak as a private citizen in his workplace, even if the content of the speech is 'related to the speaker’s job.'... Carter’s speech was political speech, which is entitled to the highest level of protection.... Indeed, the public’s interest in Carter’s opinions regarding the election may have had particular value to the public in light of his status as a Sheriff’s Office employee."
Examining another plaintiff who went on the opposing candidate's Facebook page and posted his own picture as a supporter was also constitutionally protected speech, according to the Court of Appeals. The Court wrote (page 47 pdf), "Certainly a posting on a campaign’s Facebook Page indicating support for the candidate constitutes speech within the meaning of the First Amendment. For the same reasons as applied to Carter’s speech, McCoy’s speech was made in his capacity as a private citizen on a matter of public concern, namely, whether Adams should be elected Hampton Sheriff."
The Fourth Circuit Court of Appeals decision speaks to the situation Nesmith and Gulley found themselves vis-a-vis Sheriff Morgan (pages 45-6 pdf): "In contrast, despite the Sheriff’s reference to the need for harmony and discipline in the Sheriff’s Office, nothing in the record in this case indicates that Carter’s Facebook support of Adams’s campaign did anything in particular to disrupt the office or would have made it more difficult for Carter, the Sheriff, or others to perform their work efficiently."
On page 8 (pdf) of the Internal Affairs report, the investigators noted that Gulley "normally accesses Facebook via Ipad at home." Other than Sheriff Morgan and unnamed others, there is no evidence in the Internal Affairs that "liking" the comments former Chief Deputy Chavers posted on Facebook had caused any disruption to the ECSO's working environment or relations between deputies. And, given the statements that Chavers made, it is difficult to fathom how they could be considered a form of "Sexual Harassment." That Sheriff Morgan was miffed to the nth degree is undeniable.
Thus, Sheriff Morgan was absolutely correct that "Clicking like is a form of speech because its use conveys a message." What the General Counsel of the Escambia County Sheriff's Office neglected to tell him was that it was constitutionally protected speech.