Cowell v. Fuller

362 So. 2d 124
CourtDistrict Court of Appeal of Florida
DecidedAugust 22, 1978
Docket77-1278
StatusPublished
Cited by2 cases

This text of 362 So. 2d 124 (Cowell v. Fuller) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowell v. Fuller, 362 So. 2d 124 (Fla. Ct. App. 1978).

Opinion

362 So.2d 124 (1978)

Fred COWELL, Executive Director, Dade County Public Health Trust, Appellant,
v.
Gloria FULLER, Appellee.

No. 77-1278.

District Court of Appeal of Florida, Third District.

August 22, 1978.
Rehearing Denied September 29, 1978.

Stuart L. Simon, County Atty. and R.A. Cuevas, Jr., Asst. County Atty., for appellant.

Long & Smith and Harold Long, Jr., Miami, for appellee.

Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

*125 HUBBART, Judge.

The central question involved in this appeal is whether the First Amendment to the United States Constitution precludes a governmental agency as an employer from disciplining one of its employees for making offensive, anti-semitic remarks on the job to a Jewish co-employee. We hold that no such constitutional prohibition exists under these circumstances and that a governmental agency as an employer may, in the interest of promoting employee harmony, discipline one of its employees for making such offensive remarks on the job to such a co-employee.

A

The critical facts of this case are undisputed. Fred Cowell, is the Executive Director of the Dade County Public Health Trust which operates Jackson Memorial Hospital in Miami, Dade County, Florida. The Dade County Public Health Trust in turn is governmentally owned and operated by Dade County, Florida. §§ 154.07 et seq. Fla. Stat. (1977).

On September 13, 1976, Mr. Cowell, in his capacity as Executive Director of the Dade County Public Health Trust operating Jackson Memorial Hospital, acted to impose disciplinary sanctions on one Gloria Fuller as an employee of such hospital. Approximately five months prior thereto, Mrs. Fuller had been demoted by her immediate supervisor to the position of Dietician I at the hospital. Mr. Cowell reinstated Mrs. Fuller to the position of Dietician III, but imposed two disciplinary sanctions as a condition thereto: (1) he disallowed her any back pay for the time she was temporarily demoted, and (2) he required her to write a letter of apology to her supervisor and to a co-employee to whom she had made certain insulting remarks. Mr. Cowell accepted the findings and recommendations which had been made in the case by a hearing examiner subsequent to Mrs. Fuller's demotion.

The basis for this limited disciplinary action by Mr. Cowell was a charge that Mrs. Fuller had made certain offensive anti-semitic remarks to a Jewish co-employee and thus had violated Ch. 10, § 6(b), (h) of the personnel rules of the Dade County Public Health Trust.[1] The record without dispute before the hearing examiner reflects that Mrs. Fuller in her supervisory capacity as a Dietician III at Jackson Memorial Hospital did in fact make certain offensive, anti-semitic remarks to a Jewish subordinate employee at the hospital, Mrs. Allen Korschun. These ethnic slurs took place over a period of time on the job at staff meetings and at other locations in the hospital in the presence of other hospital employees. Examples of these anti-semitic remarks were:

"You know about Jews, Mrs. Korschun, they are pushy and aggressive;"
"All Jews have money. Look at you Mrs. Korschun, your husband is a millionaire;"
"Did you ever see all those little old Jews on Miami Beach. They are so shriveled up, Mrs. Korschun, why is it that all Jews shrink like that."

On one occasion Mrs. Korschun asked for permission to leave work 15-30 minutes early and make it up the next day so that she could arrive home in time to celebrate Hanukkah. Mrs. Fuller denied the request and ridiculed Mrs. Korschun by saying:

"Mrs. Korschun, anyone who eats pork doesn't have to light Hanukkah candles on time."

Mrs. Korschun was known not to observe the orthodox Jewish dietary laws.

The above remarks greatly upset Mrs. Korschun who eventually complained to Mrs. Fuller's supervisors. Appropriate steps were taken to investigate Mrs. Korschun's complaints, and when found to be *126 true, Mrs. Fuller was demoted to Dietician I. Mrs. Fuller thereafter requested a hearing on the charges which was promptly held and at which she was represented by counsel. The hearing examiner after a full evidentiary hearing sustained the charge that offensive anti-semitic remarks were made to Mrs. Korschun on the job, but recommended less drastic disciplinary action. On the basis of the hearing examiner's findings and recommendations as well as the entire record, Mr. Cowell offered to restore Mrs. Fuller to the grade of Dietician III subject to two conditions: (1) that Mrs. Fuller make a written apology to Mrs. Korschun and Mr. John Butterworth, her immediate supervisor, for the bigoted remarks which she made to an employee under her supervision, and (2) that the reduction in salary caused by Mrs. Fuller's demotion to Dietician I, to the date of her reinstatement to Dietician III, be forfeited.

Mrs. Fuller accepted her reinstatement to Dietician III and wrote the required letters of apology. She resisted, however, the disciplinary sanction imposed by Mr. Cowell as to the loss of back pay during her period of demotion. She filed a petition for writ of certiorari to the Circuit Court for the Eleventh Judicial Circuit of Florida and contended in effect that Dade County was barred by the First Amendment to the United States Constitution from disciplining her in any way for making the offensive anti-semitic slurs on the ground that she had a free speech right to make those remarks in the employment context.

The circuit court granted the petition for writ of certiorari, struck the disciplinary sanctions imposed upon Mrs. Fuller, and ordered that she recover any reduction in salary and loss of emoluments of office occasioned by her demotion. The basis for this decision was that Mrs. Fuller had not been found guilty of any actionable misconduct upon which disciplinary sanctions could be imposed. Dade County appeals.

B

The leading and most relevant First Amendment case on the power of the government as an employer to discipline one of its employees for uttering certain speech is Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In that case, a school teacher employed by a township board of education was dismissed from his employment for writing a letter to the editor of the local newspaper which was critical of the school board and the superintendent of schools in their handling of certain proposals to raise new revenue for the schools. The Court struck down the dismissal and articulated the applicable constitutional principles of law governing its decision as follows:

"To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. (citations omitted). `[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' (citation omitted).

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Related

Jacker v. School Board of Dade County
426 So. 2d 1149 (District Court of Appeal of Florida, 1983)
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300 N.W.2d 763 (Supreme Court of Minnesota, 1980)

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362 So. 2d 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowell-v-fuller-fladistctapp-1978.