3 female Orlando LEOs injured on duty accuse OPD of gender bias

By Tess Sheets Orlando Sentinel

ORLANDO, Fla. — Hired by the Orlando Police Department when she was 24 years old, Dolores Bracero’s identity was rooted in being a cop. In 10 years patrolling the city’s streets, she said she took pride in never turning down someone who asked for help.

“I didn’t care if it was the neighborhood drunk. If he said something happened, I would help,” she said. “… Not everybody’s willing to go that extra mile.”

But she injured her hand and wrist during a training exercise in 2015 and was unable to return to patrol. Bracero applied for medical retirement, but instead was reassigned to jobs that involved making copies and inventorying laptops in a windowless room. When she was told three years later that she had to return to full police duties — despite her inability to meet job demands, according to her doctor’s evaluation — she said she refused and was fired.

Bracero, 38, is among at least three female Orlando Police Department officers who have recently filed complaints against the agency through the Equal Employment Opportunity Commission, alleging OPD discriminates against disabled women by more often forcing them into menial roles while men with similar injuries are allowed to retire and collect their pensions.

The practice, they say, reflects a culture within OPD that denies opportunities to women in favor of men.

“I was young when I signed up. I’ve given pretty much my life … birthdays, holidays, everything, for a job that, when I needed them, they turned their back on me," Bracero said. "… [T]hey want to say that we’re a huge OPD family. They have shown that it’s only for certain people.”

In EEOC complaints, Bracero and two other women, Elizabeth Waba Daniels and Cheryl Middleton, describe being harassed by male employees because of their gender and later retaliated against after requesting accommodations for their injuries. All three women were given notice by the EEOC in June of their right to sue, though the Commission did not make a determination as to whether OPD had violated any Florida statutes.

Jeffrey Appel, the Lakeland attorney representing the three women, said federal lawsuits against the Police Department are expected to be filed this week, alleging the agency violated the Americans with Disabilities Act, the Rehabilitation Act and their civil rights. Waba Daniels and Middleton, who still work at OPD, declined to be interviewed about their complaints, allowing their lawyer to comment for them.

“There’s really two things going on: It’s treating them different because they have a disability and an overlapping layer of being treated different because they are females with a disability,” Appel said.

Citing pending litigation, OPD declined to make Chief Orlando Rolón available for an interview to comment on allegations laid out in the complaints.

‘A biased sort of system’

Officers who have been restricted by a doctor from performing certain work functions after an on-duty injury can be placed in alternative duty positions while they recover or seek medical retirement. But that officer must return to full duty within a year of being placed in an alternative duty position, according to department policy.

After their injuries, Bracero and Middleton each applied for retirement, but were instead offered permanent limited duty positions, a way they say the department could prevent them from getting their pensions under the guise of accommodating their disabilities.

Officers assigned a permanent limited duty position are not bound by the one-year time limit that exists for alternative duty posts. Middleton is one of only four officers who currently work in a permanent light duty role.

Per OPD policy, an officer who applies for a medical retirement is automatically considered for a limited duty position. By applying for the disability pension, the officer’s injury has been deemed at its maximum level of improvement and the officer “unable to return to full and unrestricted duty,” the policy states.

A draft of Bracero’s lawsuit, provided by Appel, alleges OPD “maintains no clear-cut or defined criteria for the selection of permanent limited duty” and, because of that, the agency uses “a biased rating system for determining permanent limited duty position in lieu of granting a medical pension.”

Though it’s not uncommon for law enforcement agencies to offer long-term disability positions, Appel said OPD assigns light duty positions to women "through a biased sort of system, which puts the females into more administrative, secretarial [roles].”

Bracero described the the office where she was assigned to inventory department laptops as a storage closet and said it initially lacked a desk and was cluttered with storage supplies. After the department received her EEOC charge, she was given a table and chair, and employees laid carpet on the concrete floor, she said.

Bracero also said in her complaint that she was denied “authentic, substantive performance reviews” from supervisors since her injury.

Waba Daniels, who suffered a back injury in 2018 after falling off a police horse, is working at OPD’s information desk in an alternative duty position while she seeks disability retirement.

In her EEOC charge, Waba Daniels described the information desk as a “fish bowl” where the agency stations officers who need extra supervision or are suspected of “faking injuries.” Under increased scrutiny, she said she was retaliated against by being denied accommodation for her injuries and given a heavier workload than men.

"In this position, I have been assigned a more intense workload than prior employees working the desk and disabled males assigned to light duty positions even though [OPD] is aware of the numerous restrictions of my accommodation request,” she said in the complaint.

Middleton, who suffered a neck herniation in 2017, in her complaint also described being subjected to harsher criticism and under constant watch by her lieutenant, Frank Nunez, who she said “constantly walks through the department which I have been assigned …in an effort to intimidate me and warn me that he is watching.”

She wrote that she was also denied breaks or to be moved to a room with different lighting because of frequent headaches associated with her injury.

The women described in their EEOC charges being denied access to a department-issued vehicle for work-related tasks and said they were sometimes prevented from attending training, which, coupled with worse performance evaluations, could jeopardize the position of someone like Middleton, whose Master Police Officer rank requires a certain amount of training, Appel said. Losing the rank would cut her pay and pension contributions.

Bracero claimed she was also passed up for a promotion to sergeant despite scoring as well as or better than the man who got the job.

When the women questioned being treated unfairly, they were subjected to retaliation, such as “shift changes, harassment, frivolous discipline" and other behaviors, Bracero’s lawsuit alleges.

“I want [OPD] to realize that it doesn’t matter whether we’re disabled, our gender, we all came here to do the job as a police officer and in that, we all signed up with certain benefits and promises,” Bracero said. “And we just want the city to keep their end of the bargain.”

Bracero said OPD ordered her back to full duty in March, against a doctor’s recommendation not to use her right hand. She used her personal paid time off to stay home until her OPD pension board hearing in May. The board denied her retirement May 17 and she was told she would have to return to full duty, documents show.

In its order denying Bracero’s disability retirement, the pension board cited two 2018 examinations of Bracero’s injuries conducted for the city by medical doctors, which indicated that Bracero’s injuries were not “permanently and totally” disabling, the threshold an employee’s injuries are required to meet in order to qualify for disability retirement, according to board members.

The board’s order states that in a May 2018 evaluation, Dr. Dan Gerstenblitt noted that “functional test results do not correlate to the objective clinical findings and are an underestimate of functional abilities.” The board also noted that Bracero had objected to the doctor’s comments.

In a December 2018 medical exam conducted by Dr. Jerry Rubin, who was contracted through the pension board, Rubin determined Bracero was capable of returning to full duty without restriction and that she was considered “recovered,” according to the pension board’s order.

But Bracero’s Worker’s Compensation doctor, Dr. W. Clark Davenport, evaluated her in February and found that she could not meet the demands of the job when performing tasks with her right hand, such as reaching, moving her fingers and performing eye-hand-foot coordination tasks. Davenport wrote that Bracero had reached her maximum improvement and her overall strength did not meet job demands.

Chris McCullion, Orlando’s chief financial officer and a trustee on the OPD pension board, said that the pension board determined Bracero had not met the “burden of proof” necessary in documenting that her injury was permanent and total.

“Bracero’s case followed our normal process, where the evidence was reviewed by the pension board, there was conflicting medical evidence and the pension board discussed it, the pension board took testimony of the applicant and reviewed the medical evidence and ultimately the pension board found that the burden of proof was not met,” he said.

Bracero refused to return to full duty and was fired May 31, according to a termination notice sent to Bracero from Rolón. Bracero said she feared returning to patrol would risk further injury.

"At the end of the day, I’m not going to put myself in a situation where I’m going to die,” Bracero said. “I can’t help myself, I can’t help somebody else.”

Limited duty jobs ending

Two other former Orlando officers have active lawsuits alleging discrimination by the department based on injuries they suffered on the job.

Kathleen Tomas, who worked for OPD for more than two decades before becoming a contract employee in the agency’s Reserve Unit in 2014, was fired in June 2018, a move she claims was a result of her filing a Worker’s Compensation claim for an on-duty injury.

In a lawsuit, filed in June in Orange County circuit court, Tomas alleged she was initially granted a light duty position at Orlando International Airport, where she was working on year-to-year contracts, after she suffered a shoulder and elbow injury while on duty in 2017. Several months later, the position was taken away, she said. The lawsuit claims OPD violated the Americans with Disabilities Act by taking away accommodations initially granted to her.

Around the same time, another contract officer at the airport, Carlos Villaverde, said he was also terminated while seeking a Worker’s Compensation claim.

Villaverde injured his neck in September 2016 while working at the airport in the reserve unit. When his annual contract was up for renewal in January 2017, Villaverde was informed he would not be signed on for another year, according to an email from then-Chief John Mina. That July, he was notified that he was being removed from the reserve unit.

In a complaint to the Florida Commission on Human Relations, Villaverde alleged OPD fired him because of his injury, ethnicity and out of retaliation for him filing for Worker’s Compensation. The FCHR determined there was no reasonable cause to support his accusations, a decision Villaverde is appealing to the Fifth District Court of Appeals in Daytona Beach.

Villaverde said the lawsuits and complaints OPD faces from disabled cops are examples of a “clear-cut” pattern by the department, which fails to take care of its officers. Villaverde is suing the city, alleging OPD unlawfully retaliated against him for filing for worker’s compensation by not renewing his annual contract and removing him from the Reserve Unit.

“It’s a pattern within the department. … They say, ‘We’re a work family. We’ll take care of you. Don’t worry about anything. We got this,’" Villaverde said. "But when you get hurt, they don’t got this. They sell you out.”

At a pension board meeting this month, the attorney representing OPD said Rolón was planning to end the permanent limited duty program altogether, leaving unclear the futures of Middleton and the other three officers currently assigned to those positions.

Earlier this month, the officers were given notice by Rolón that their limited duty positions will end Sept. 30 and that they must undergo a fitness for duty exam by a doctor, which would determine whether they are able to return to full duty.

“Should the results of the examination indicate that you are medically able to return to full duty, you will be assigned accordingly,” the letter states.

If they are deemed unable to return, the notice said they will need to file for disability retirement immediately.

Shawn Dunlap, president of the Fraternal Order of Police lodge that represents OPD, said if the exam clears them to return to full duty and they refuse, they would be terminated.

Dunlap said the union has long urged the Police Department to allow officers in permanent limited duty positions to retire with a medical pension when they’ve been with the agency for 20 years.

McCullion said retiring with a medical pension is worth more to officers than seeking regular a retirement pension when they hit 20 years. Under the pension fund policy, an officer who is granted disability retirement is paid 80 percent of their average monthly earnings over the previous three years, tax-free, for the rest of their lives, McCullion said. An officer retiring after 20 years with no disability receives 70 percent of their average monthly income.

Now that the limited duty positions are being eliminated, Dunlap said he hopes OPD will honor the pension board’s original determination that the officers are unfit for duty.

“It was quite surprising to me that it ended as abruptly as it did and I would hope that the department would allow these four police officers [in permanent limited duty positions] to medically retire, since they’ve already been to the pension board and the pension board has determined they were already permanently and totally disabled from an on-duty injury,” Dunlap said.

Middleton, who has been with OPD for more than two decades, and the others working in the limited duty positions, are expected to find out Sept. 12 whether the pension board will grant them medical retirement, McCullion said.

‘Good ol’ boy’ system?

Bracero said the EEOC complaints reflect a larger cultural problem at OPD and show that "there’s a big [disparity] between female and males.” She said she hopes speaking out publicly about her experience "will uncover that there is still a good ol’ boy system going on. And hopefully it will eliminate that.”

In her complaint, Waba Daniels said she had been treated differently because of her gender before she was injured. After undergoing a breast enhancement surgery in 2015, she said she was forced to pay for a new ballistics vest out-of-pocket because her old one no longer fit.

Although her supervisor signed off to purchase the vest with agency funds, she said he later initiated an Internal Affairs investigation against her, saying he thought the form he signed was just an approval for her to undergo a vest fitting. In her EEOC charge, Waba Daniels explained that “[t]here is no procedure or form for an officer to only be ‘fitted for a vest.'"

“After a lengthy IA investigation, with no findings, I was forced to pay for the vest out of my own pocket," the complaint states.

When she received the new equipment, she said she was given bullet proof plates that are sized for men, even though the manufacturer makes plates designed for women. She described the incident as an example of “harassment and intimidation” and said it “has created and continues to perpetuate an extremely hostile work environment.”

Bracero said she hopes the lawsuits will inspire others at OPD who feel like they’re being treated unfairly to speak out.

“I’m really worried about the rest of the personnel there. There are a lot of people that won’t speak up or stand up because [of] the way that things go and they don’t want the backlash,” Bracero said. “This behavior is just going to continue to go on, and it has for so many years.”

©2019 The Orlando Sentinel (Orlando, Fla.)