Findings Of Fact The School Board of Pinellas County is a public employer within the meaning of Florida Statutes Section 447.203(2). The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10). During December, 1975, the Charging Party filed a representation petition with the Public Employees Relations Commission seeking to represent a unit of employees of the Public Employer. Proceedings were conducted in accordance with the petition, and on February 2, 1976, the Public Employees Relations Commission, through its chairman, issued a Direction Of Election. A copy of the Direction was received into evidence at the hearing in this case as Respondent's Exhibit 1. The appropriate collective bargaining unit is therein described as follows: "Included: All eligible employees of the Pinellas County School Board employed in the ground maintenance, transportation, plant operations, warehouse and food-service departments. Excluded: All other non-instructional, instructional, and clerical employees; and all managerial/confidential employees of the Pinellas County School Board. See Attachment A." The election as conducted on or about March 11, 1976, and a majority of the employees in the unit described in the Direction of Election voted in favor of representation by the Charging Party for purposes of collective bargaining. The Public Employer thereafter filed objections to the conduct of the election (Respondent's Exhibit 4). The chairman of the Public Employees Relations Commission entered a report on objections on March 31, 1976 (Respondent's Exhibit 5). The chairman dismissed the objections on the grounds that they were not timely filed. On May 12, 1976, the Public Employees Relations Commission certified the Charging Panty as the exclusive bargaining agent for the unit of employees described in the Direction of Election and in the Erratum issued by the chairman of the Commission on February 26, 1976 (Respondent's Exhibit 3). The Public Employer filed a request for review of the chairman's dismissal of the objections (Respondent's Exhibit 6). By decision issued September 7, 1976, the Commission dismissed the objections (Respondent's Exhibit 7). The Public Employer thereafter filed a Petition For Re-Hearing. Further proceedings respecting certification of the bargaining unit were not made a part of the record in this case; however, it is assumed for the purposes of this Recommended Order that the Public Employer is in the process of appealing the Commission's decisions. Following the election, on April 2, 1976, the Charging Party wrote to the Public Employer requesting that negotiations be opened (General Counsel's Exhibit 1). The Public Employer responded by letter dated April 27, 1976 (General Counsel's Exhibit 2), as follows: "As you know, the school board, through the superintendent and my office, has taken appropriate steps to appeal certain procedures relating to the election held in the above matter. Until that procedure has been finalized before the Commission, we will not be in a position to enter into negotiations. It is further noted that you have not received an official notice that you are now the bargaining agent on behalf of a segment of the supporting services of the school board. Until such time as all the proper procedures have been taken before the Commission and a final determination has been made by the courts of the State of Florida, and you have been recognized by the school board as the bargaining agent on behalf of the supporting services employees, we would respectfully deny your request at this time." Following its certification as the collective bargaining representative, by letter dated May 17, 1976, the Charging Party again requested that negotiations be opened (General Counsel's Exhibit 3). Further requests were made by letters dated August 5, 1976, and August 26, 1976 (General Counsel's Exhibits 4, 5). The Public Employer has not responded either in writing or verbally to the requests to open negotiations, other than through its letter of April 27, 1976. The Public Employer has refused to enter into collective bargaining negotiations with the Charging Party, and continues to refuse to enter into negotiations until a final determination is made by the courts respecting the Charging Party's certification, and until the school board has recognized the Charging Party.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Public Employees Relations Commission enter an order requiring the School Board of Pinellas County to recognize the Pinellas County Custodial Union, #1221 as the exclusive bargaining agent of the unit of employees certified by the Public Employees Relations Commission; that the School Board of Pinellas County cease and desist from refusing to engage in collective bargaining negotiations with the Pinellas County Custodial Union, #1221; that the School Board of Pinellas County forthwith enter into good faith collective bargaining negotiations with the Pinellas County Custodial Union, #1221; and that the School Board of Pinellas County advise the Public Employees Relations Commission in writing of what steps it has taken to comply with the final order of the Public Employees Relations Commission between 30 and 45 days following entry of an order by the Commission. RECOMMENDED this 16th day of December, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518 Austin Reed, Esquire Public Employee Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32301 Edward Draper 5400 West Waters Avenue Tampa, Florida
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue Whether Respondent is guilty of discrimination, as defined by the Florida Fair Housing Act, Chapter 760, Part II, Florida Statutes, against Petitioner, on the basis of her age and/or handicap.
Findings Of Fact Petitioner is a 73-year-old woman on a fixed income. She suffers from congestive heart failure, for which she takes medication. She has been treated one time for an allergic reaction to pesticides, but an on-going allergy to pesticides was not proven. She lives alone in a mortgaged home in the County of Volusia. Respondent James A. Whittaker has been the Housing Manager for Respondent County of Volusia Community Service Group (Group) only since 1998. Respondent Group is part of the Community Services Department of the Volusia County government. The Group receives grants, lets construction bids/contracts, and provides low-cost funding to pay for maintenance/repair/improvement work on the homes of low-income homeowners in Volusia County. There is no age factor involved in the Group's determination of a homeowner's eligibility. Eligibility is determined based almost entirely upon income. The vehicle for Volusia County's maintaining/ repairing/improving low-income homes is called a "rehabilitation loan." The normal sequence of events for a homeowner is to: apply for eligibility; be determined eligible by the Group; be placed on a waiting list; rise to the top of the waiting list; sign a Rehabilitation Loan Agreement; and participate in a home inspection/pre-bid conference in the home. After this, the Group bids out a contract and accepts a bidder. Then, the successful bidder repairs the home and is paid by the Group. Homeowners over 62 years of age are not required to pay back any of the money; younger homeowners are required to repay 50 percent. Effective in the autumn of 2000, the Group, on behalf of the County, began to require, as part of the Rehabilitation Loan Agreement, that each homeowner execute permission for a timed lien on the home which would protect 50 percent of the Group's investment if, within a specified time period after the work is completed, the homeowner rents, sells, or vacates the real property which has been improved at public expense. The time period for each lien is based on the amount of the loan. Larger loans result in longer lien periods. There is a similar provision for a lien if the homeowner dies within a specified period and the new client is less than 62 years of age. In the case of death of a homeowner, accommodations with regard to the lien can be made for familial heirs less than 62 years of age who inherit from homeowners over 62 years of age. (R-1) In 1994, Petitioner sought housing assistance/a rehabilitation loan from the Group. She filled out the necessary application paperwork and was determined to be eligible for assistance. Her name was placed on a waiting list ranked solely by the date she was deemed eligible. At that time, the immediacy of her repair needs was not part of her ranking or that of any other applicant. She was told the Group would get to her in approximately two years. Before Petitioner's name moved to the top of the waiting list so that her repair/maintenance problem could be assessed, and possibly addressed, by the Group, her name was either removed from the list inadvertently or because she did not respond to periodic notification(s) that she must affirmatively state whether she still wished to remain on the list or not. Mr. Whittaker did not work in any capacity that would have permitted him to remove her name prior to 1998. There is no proof that Mr. Whittaker or his predecessor(s) did any affirmative act at any time to remove her name, let alone removed her name for a discriminatory reason. Between 1994 and 2000, Petitioner was required to sign up several times to get back on the list. She found this confusing and unfair. She has complained about this to many people. By 2000, the hole in Petitioner's floor, which she had originally approached the Group to fix, had become substantially larger than it was when she first applied. She maintains that this was because the hole had gone unattended from 1994 to 2000. She blames the Group for the interim deterioration of her house. (P-2, P-3) Petitioner also has had roofing problems. She maintains that the Group's delay in addressing her roofing problems has caused minor roofing damage to increase to substantial water damage inside the home. She testified that the original problem was exacerbated when an inspector stepped through a room ceiling weakened by rain coming through the roof into the attic. It was proven that she currently has a bad leak in her dining room, and considerable damage to the ceiling and dry wall, but it was not proven when or how this problem began. Petitioner has a particular kind of roofing shingle that she wants replaced and warranted, and she does not want to accept any substitutes. (P-2, P-3) Sometime in 2000, in response to Petitioner's complaints, Ms. Herrin, the Housing Coordinator in Mr. Whittaker's office, went to Petitioner's home to determine what Petitioner's situation was, because none of her papers could be located. Ms. Herrin assisted Petitioner in making out and submitting new application papers. Petitioner was declared eligible and placed on an emergency repairs waiting list. In response to Petitioner's complaints, a County Inspector came to her house. Upon this inspector's recommendation, the Group paid for someone to do a temporary repair to Petitioner's floor. This inspector may have been the person who stepped through Petitioner's ceiling, but Petitioner's testimony is not clear in this regard. The floor repair was admittedly only a temporary one, and Petitioner does not like it. She is concerned about people and animals crawling under her house and losing her insurance as a result. On February 24, 2000, the Group sent Petitioner a letter, over the signature of a staff assistant, stating that Petitioner's name was being removed from the emergency waiting list because the inspection had determined that no emergency existed, and that Petitioner would be retained on the regular rehabilitation list and receive assistance when her name reached the top of that list. (P-4) In response to Petitioner's continued complaints, on March 24, 2000, Mr. Whittaker reported to the SHIP Analyst at the Florida Housing Finance Corporation that the Group had stabilized Petitioner's bedroom wall and caulked the areas around her window. An inspector had explained to Petitioner the work that had been done and needed to be done and that the present temporary repairs would be sufficient until she became eligible for a substantial rehabilitation loan. (P-1) Petitioner has not refuted this information. The materials forwarded by the Commission to the Division show that Petitioner prepared her discrimination charge, based on age and disability, on August 21, 2001, stating that the last discrimination had occurred on "July 31, 2001 and continuing." The charge bears no signature of Petitioner and no date stamp by the Commission. However, these pleadings show that Petitioner objected to the designation of her problems as "non-emergency," and further show that she does not want to sign the lien agreement required of all participating homeowners. At hearing, Petitioner pointed out that a lien was not required when she first applied in 1994 and, indeed, was not required prior to the autumn of 2000, but whether the contract to repair/improve Petitioner's home, described below, was bid before or after she filed her charge of discrimination, is not clear on the record. At some point in time after autumn 2000, Petitioner was offered a rehabilitation loan to make major repairs and improvements to her home. Petitioner objected to some of the terms and conditions of the loan, including but not limited to the lien requirements, and refused to sign the County of Volusia Rehabilitation Agreement. (R-1) Assuming that she would eventually sign the agreement, the Group went ahead and bid out the work for the rehabilitation of Petitioner's home. Charles Coleman, the building contractor who was awarded the bid, required that Petitioner move out of the house while the contracting work was being done. This is such a common requirement by contractors that the Group has pre-printed Temporary Relocation Notices, which staff merely fill out to specify dates for the respective participant-homeowners to be in and out of their houses and which instruct them to pack up any breakables and valuables for that interim period. The form letter is applied to all applicants by the Group, regardless of which contractor makes the request. The Group, like the contractors, fear liability if a homeowner is hurt or any damage is done to his or her possessions during construction. Also, a construction crew cannot proceed in a timely, efficient, and cost-effective manner with laymen, including the homeowner, present on a project. Petitioner refused to temporarily vacate her house while the contractor did the rehabilitation work. Ms. Herrin met with Petitioner five times to explain the health considerations of Petitioner remaining in the house during construction, but this is not sufficient, in light of the remainder of the evidence, to support a finding that anyone associated with the Group or the County perceived Petitioner to be "handicapped," as defined by the applicable statutes. Petitioner maintained to the Group, and further maintained at hearing, that plaster dust would not bother her. Despite the obvious danger of construction to someone with congestive heart failure and pesticide allergies, Petitioner continued to insist upon remaining in her home for the duration of the construction. She also testified that her doctor believed it more stressful for her to "run back and forth" than to stay in the house during the construction. Petitioner did not establish that her doctor was aware of the lengths to which the Group was willing to go to make other living arrangements for her, which are detailed below; but based upon Petitioner's testimony, the undersigned is forced to conclude that Petitioner has not established that her medical condition(s) substantially limit one or more of her major life activities. Contractor Coleman refused to do the work if Petitioner remained in the house during construction, so on November 20, 2001, Mr. Whittaker wrote a letter (R-3) to Petitioner explaining that Mr. Coleman would need Petitioner to be out of her home for only nine days and that his crew would move all her furniture into a storage box and keep it on her property while the work was being done. He pointed out that all her home's electricity and water would be shut off during the nine days of construction. He stated that Petitioner could move back into her house after the primary work was finished. This letter's explanation comports with the rather lengthy list of repairs on which the contractor had bid, which, in addition to fixing Petitioner's roof and floor, included some plumbing and replacement of major kitchen appliances. (P-5, R-3) While it is possible that repair costs could run so high that the Group would not replace Petitioner's stove and refrigerator, apparently that determination would have had to wait until construction was underway. In other words, Petitioner wanted a new stove and refrigerator but might not have gotten them due to the existing funding scheme. However, it is clear that the Group and Mr. Coleman agreed to make sure that Petitioner got the best warranty possible on the type of shingle she was requesting; that her wishes with regard to her interior doors were met; and that her other requests were honored wherever they did not offend either the legal requirements for construction contracts or building permits/codes. (P-5, R-3) Mr. Whittaker's November 20, 2001, letter also advised Petitioner that the second lowest bid was $5,000 more than Mr. Coleman's bid; that the third lowest bid was $6,000 more than Mr. Coleman's bid; and that the second and third lowest bidders would require Petitioner to be out of her house for 60 days, or neither of them would do the job. Petitioner has not refuted any of this information. (R-3) At hearing, it was shown that Petitioner has a grown son residing in Volusia County, with the potential to house her during construction. It was not shown that he would be able to house Petitioner during construction. However, in his November 20, 2001, letter, Mr. Whittaker offered to find Petitioner a place to stay for the nine days' duration of construction. (R-3) After Petitioner repeatedly refused to leave her home for the nine days of construction, Mr. Coleman withdrew his bid on the project. Prior to filing her discrimination complaint on or about August 21, 2001, Petitioner complained a lot about delays and paperwork, but she never stated or wrote to anyone with the County or Group that she felt she had been discriminated against. In hearing, when first asked why she thought she had been turned down for a rehabilitation loan, she replied, "I don't know," but later she stated it was because of her age and heart condition. When first examined about Mr. Whittaker's involvement in this case, Petitioner stated that she had never met or talked to Mr. Whittaker, but later in the hearing, she insisted that at some undesignated time, Mr. Whittaker screamed at her over the phone that he would never fix her house or allow his inspectors to enter it because she had written Governor Bush about him. Mr. Whittaker credibly denied making such a statement, and his letters in evidence demonstrate his efforts to work with Petitioner, not against her. Even if Mr. Whittaker had made the statement of which he is accused, such a reason as "retaliation for calling the Governor" would not be probative of discrimination on the basis of age or handicap. On January 28, 2002, Mr. Whittaker wrote Petitioner offering to rebid the job if she would cooperate by leaving the house just during primary construction. The letter requested that Petitioner let him know what her intentions were by February 12, 2002, or he would close her file. (R-4) On February 13, 2002, Mr. Whittaker answered a letter from Petitioner's attorney, informing him that in order for Petitioner to participate in the rehabilitation program, she would have to agree to vacate her premises until the contractor had completed a substantial portion of the work and that he, Mr. Whittaker, could not rebid the project until Petitioner complied. (P-7, R-5) On March 20, 2002, the Commission returned a Determination of No Probable Cause against Petitioner. On April 9, 2002, Petitioner filed her Petition for Relief. On April 12, 2002, the Director of the County of Volusia Community Services Department wrote a final time to Petitioner stating that because she refused to relocate temporarily from her home for just nine days, the contractor had relinquished the bid, and accordingly the Director was closing her file. (R-6)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 2nd day of October, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2002. Daytona Beach, Florida 32114 Randell H. Rowe, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720-4613 James L. Whittaker, Housing Manager County of Volusia Community Service Group 123 West Indiana Avenue, Room 203 Deland, Florida 32720-4611 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
The Issue The issues presented at the Hearing on the Amended Petition were the same presented in the original RC Petition, as stated above. Who is the public employer? This issue has been raised by Motion as indicated above. The Sheriff's Department argues that the Sheriff is not the Public Employer because his power to hire, fire, discipline and promote employees is subject to the provisions of the Escambia County Civil Service Board which was established by law. Section 3 of Chapter 75-369, Laws of Florida, clearly places all employers of the Sheriff's Department with the exception of the Sheriff, Secretary to the Sheriff, and Chief Deputy Sheriff within the classified service of Escambia County. Further, the Sheriff's Department argues that it does not have any control over its budget because the County Commissioners approve the Sheriff's budget. See Section 30.49, et seq., Florida Statutes. The County Commission argues that although it appropriates the money for operation of the Sheriff's Department, that once appropriated the County Commission cannot control its expenditure. See Weitzenfeld v. Dierks, 312 So 2d 194. The Civil Service Board argues that it is not the employer but a statutory creature established for the protection of employee rights. See Section 4, et seq., Chapter 75-369, Laws of Florida. This issue as raised by the various motions mentioned above is presented for consideration by the Public Employees Relation Commission. Is the Petitioner an employee organization within the meaning of Florida Statutes, Chapter 447 and is there a sufficient showing of interest as required by Florida Statutes, Chapter 447? The Sheriff's Department questioned whether the Petitioner in this cause was the Florida PBA or Escambia County PBA. The Hearing officer ruled that the RC Petition was filed by Florida PBA. Subsequently, the Sheriff's Department developed testimony that indicates that although the employees questioned executed signature cards, they could not recall at the time of the hearing whether they had designated Florida PBA or Escambia County PBA as their Agent for Collective Bargaining. It was clear that the employees questioned knew when they signed the cards which of the organizations they were designating, and that they considered the two organizations to be as one; Escambia County PBA being a chapter of the statewide organization to which they belonged. This issue is one which must be resolved by examination of the signature cards to determine whether Florida PBA has presented the requisite showing of interest. As it might relate to the issue of who the public employer is, the employees questioned could not clearly recall who was designated the Public Employee on the signature cards. Is the Employee Organization properly registered with PERC? Clearly the record indicates that Florida PBA is duly registered with PERC; however, there is no evidence to substantiate that Escambia County PBA is registered with PERC as that issue might relate to the issue of which organization provided the requisite showing of interest. What is the appropriate unit of public employees in this cause? ORGANIZATIONAL STRUCTURE The Sheriff's Department of Escambia County has 240 employees to include the Chief Deputy, Lieutenants, Sergeants, Investigators, Law Enforcement Officers I's and II's, I.D. Technicians, Jailers, Mechanics, Secretaries and Support Personnel. The RC Petition, as amended, seeks to include all full-time Sheriff's Deputies of the rank or classification of Sergeant, I.D. Technician, Investigator, LEO II, and LEO I. Petitioner would seek exclusion of all unsworn employees of the Sheriff's Department, Lieutenants and the Chief Deputy (or Captain). Within the Department, according to EXHIBIT 3 and EXHIBIT 2, there are 167 sworn officers. There are 52 LEO I's, 63 LEO II's, 17 Sergeants, 5 I.D. Technicians, 1 I.D. Officer, 1 Chief I.D. Officer, 6 Lieutenants 1/ , 1 Captain, 4 Motorcycle Officers, 5 Task Force Officers, and 14 Investigators. These personnel are organized with eight sub-areas some of which are combined, and make up the six Divisions within the Sheriff's Department: Administration, Investigation, Uniform/Traffic, Jail, Identification/Communications and Special Services. Each of these Divisions is commanded by a Lieutenant. Uniform and Traffic Divisions, as indicated on EXHIBIT 2, are both under the supervision and direction of Lt. Ward, and for all intents and purposes are considered as one Division. Within Uniform Division, there are four shifts, A, B, C, & D, each commanded by a uniformed Sergeant. Investigations Division has five Sergeants assigned and the 14 Investigators in the Department are assigned in this Division. These Investigators are primarily located in the crimes against property and crimes against persons Sections. There are five officers currently assigned to the Task Force according to EXHIBIT 3. Administration Division has within it Civil Process Section which is charged with serving legal pleadings and processes within Escambia County. Several LEO I's and LEO II's are assigned these duties under the direction of Sgt. Dean who is the assistant to Lt. Penton, the Division Chief. Jail Division is responsible for guarding the prisoners at the County Jail. The jailers are not sworn officers, however, there are sworn officers assigned to the jail. According to the testimony, new deputies are initially assigned to the jail prior to being placed on one of the uniformed shifts. The Petitioner does not seek to represent the unsworn jail personnel. Identification Division primarily consists of those personnel who investigate crime scenes. This function is under the direct supervision of the Chief I.D. Officer, who has the same rank as a Lieutenant. However, the Chief I.D. Officer is subordinate to the Lieutenant in charge of the Division. There is also an I.D. Officer assigned who has less authority than a Sergeant, but more than an I.D. Technician. There are five I.D. Technicians assigned. The I.D. Officer is the most senior and most experienced of the I.D. personnel and is available to assist the I.D. Technicians with technical problems. Beyond the sworn officers mentioned above, the only personnel assigned to Jail, Communications, and Special Services Divisions are the Lieutenants and Sergeants indicated on EXHIBIT 3 who perform basically administrative duties. DUTIES AND FUNCTIONS OF DEPARTMENT PERSONNEL The Chief Deputy as the name implies is the chief assistant to the Sheriff. The position is at the grade of Captain, and while it is currently a civil service job, subsequent to the retirement of the incumbent, it will be reclassified to unclassified status. The position and relationship with the Sheriff was described by the the Sheriff as being the "Co-Sheriff." Lieutenants are essentially administrative officers and do not generally engage actively in law enforcement duties and exercise line authority over deputies. Testimony was not presented regarding each Lieutenant's duties. They generally are charged with administration of their Division. They do provide input, and through their advice to the Sheriff participate to some extent in establishing Departmental policy. This is done through frequent but unscheduled conferences with the Sheriff. They were excluded from the unit for which Petitioner has petitioned. Sergeants are assigned in all Divisions of the Department. Their duties and functions vary dependent upon their specific assignments. Sergeants in the Uniform Division are shift commanders. These are four shifts within this Division, each shift composed of 15 - 18 Deputies. Two to three deputies are assigned out from under the control of the Shift Sergeant and patrol outlying areas of the County. Therefore, the shift is generally composed of 14 Deputies who are directly supervised by a Shift Sergeant. The duties and authority of the Shift Sergeant include assigning patrol areas, discipline of the shift, preparation of shift reports, approval of vacations and time off, and granting compensatory time and overtime. His authority is limited, as is the Sheriff's, regarding discipline; however, a Shift Sergeant may suspend personnel pending reinstatement or formal action by the Sheriff. The Shift Sergeant would approve or disapprove requests for transfers; however, the Sheriff or Captain would be the final decision maker. The Shift Sergeants spend 20-25 percent of their time preparing reports and attending to similar administrative duties. For this purpose, they use the Shift Sergeant's office. They spend the remainder of their time in the field. There they attempt to cover all the patrol area checking on the activities of their shift. They spend approximately 40 percent of their time in this function. The remaining time they spend on actual patrol, or backing up and providing assistance to their shift's deputies involved in a major law enforcement activity. Over 50 percent of the Shift Sergeant's total time is spent in administration or shift supervision. Shift Sergeants go directly to the Chief Deputy (Captain) to seek guidance or report matters of importance, by-passing the Lieutenant in charge of Uniform Division. This Lieutenant works from 8:00 a.m. to 5:00 p.m., five days per week and spends his time basically on administration of the Uniform/Traffic Division. Sergeants in the other Divisions do not exercise the same degree of supervision that Shift Sergeants do because their personnel are generally more experienced, have been with the department a longer period of time and do not need the same degree of supervision. Further, the work performed by the other Divisions does not lend itself to close supervision. The testimony revealed, for example, that the Sergeant in Crimes Against Persons was presently assigned to a special task force which worked primarily at night. Therefore, his ability to supervise the activity of this Section which works basically during the day was severely limited. The investigators in this Division conduct their follow- up investigations on the Uniformed Deputies' field reports in a largely unsupervised fashion, completing their activities without further reports to or direction from the Sergeant in charge. The Sergeants in investigations perform investigative activity and also administer their particular Section. As stated above, the Sergeants assigned to the Jail and Communications Division perform primarily administrative duties. The Sergeant at the Jail commands one shift of jail personnel. The other shifts are commanded by the Senior LEO I or LEO II assigned. The grade of investigator is between LEO II and Sergeant. These are generally experienced deputies with some years on the Department. Their duties, as mentioned above, are to conduct investigation into crimes reported by Uniformed Deputies. This would include interviewing victim, witnesses, and suspects and preparing investigative reports. An Investigator would present his findings to the prosecuting authority and testify before petit and grand juries. The testimony indicates that because of the nature of the work and the experience of the personnel involved there is little supervision by the Sergeants. This is also the situation in the Civil Process Section of the Administrative Division. LEO I and LEO II The duties and responsibilities of these two positions are basically the same. Personnel in both classifications are assigned to several of the Department's Divisions but primarily they are found in the Uniform Division. Some LEO II's are assigned to Civil Process in Administrative Division and occasionally to the Jail Division. The LEO I position is the entry level position for sworn officers. After a year a LEO I is eligible for promotion to LEO II if there are vacancies. Both grades are primarily charged with enforcement of county ordinances and state laws. LEO I's and II's together with all the sworn officers mentioned above have arrest powers and carry badges and firearms. OTHER FACTORS Leave, insurance, and retirement benefits are the same for all sworn personnel. Because of the hazards of the work, these benefits differ from unsworn employees of the Sheriff's Department. The salaries of Department Personnel are based upon a pay classification system prepared and controlled by the Civil Service Board. The Civil Service Board also prepares the list of five most eligible officers for promotion based on resumes prepared by Department personnel. From these lists, the Sheriff selects the personnel to be promoted. All Deputies must pass the Civil Service entry examinations, and become Civil Service employees. As Civil Service employees, they have the right to make grievances to the Board and to appeal disciplinary action taken against them by the Sheriff. The Sheriff prepares the budget for the Department in conjunction with the Chief Deputy (Captain). Input is provided primarily by the Lieutenants. The budget is submitted to the County Commission who must approve the budget by category. The County Commission cannot, however, direct the Sheriff how to spend his appropriations after the budget is approved. On the other hand, the Sheriff cannot shift funds from one category of appropriation to another. One specific budget category deals with salary and personnel expense. All sworn officers by virtue of their sworn duty to enforce the law, are engaged in duties which are more hazardous than other non-sworn personnel employed by the Department or other Civil Service employees. This additional hazard is reflected in their retirement, insurance and similar benefits. This report respectfully submitted this 8th day of June, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact In 1985, Petitioner was employed by the Department as an Engineer III. He was eventually promoted to Engineer IV and then to Engineer IV coordinator. Prior to July 1, 2001, Petitioner’s positions were classified as career service. On July 1, 2001, Petitioner’s position was changed from a career service classification to an SES classification and designated as an Engineer Supervisor IV. A knew job description was also prepared. Throughout his employment, Petitioner’s main duty was to inspect, maintain and repair fire and security alarm systems in State office buildings. In that capacity and depending on the particular system, Petitioner worked as part of and coordinated with a team of one to two other inspectors. Petitioner’s position as an Engineer IV was a position within the PERC certified Professional Career Service collective bargaining unit, represented by Florida Public Employees Council 79, Association of Federal, State, County and Municipal Employees Union (AFSCME). For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In fact, Petitioner’s positions as an Engineer III and IV did not involve supervisory functions. However, when he became an Engineer IV coordinator, Petitioner had some supervisory duties. Those duties were primarily approving time sheets and performing annual employee performance evaluations. Employee assignments and training were handled as a team with a particular employee’s specific equipment knowledge and building knowledge being key factors. When work was performed together, the employee with the greater expertise with the system directed the work. Prior to his termination, Petitioner supervised Ed McCann and Richard Lamberto. Approximately 90 percent of Petitioner’s time was spent responding to calls regarding the malfunctioning of fire and security systems. About five percent of his time was spent performing routine maintenance on such systems and another two to four percent on responding to fire marshall’s inspection reports. Less than one percent of his time was spent on supervisory duties. Petitioner’s primary duties involved the exercise of independent judgment. His duties were not routine or clerical in nature. Petitioner did not have the power to hire and fire an employee or the power to make purchase decisions. He could make effective recommendations regarding those decisions. He did not have authority over any budgetary matters. There was no evidence that Petitioner’s position dealt with confidential matters. In fact, Petitioner’s actual job performance did not change after his position was reclassified to Engineer Supervisor IV, SES. His day-to-day performance did not change primarily because his office was seriously understaffed for the statewide duties of their office. However, the new SES description expanded the supervisory or managerial duties of Petitioner’s old career service position description. In pertinent part, the position description as of July 2, 2001, stated the following: 20% Supervisory: Supervision of Fire & Safety employees in their duties and responsibilities. Evaluations and review of job performance, recommendation of disciplinary action if necessary, training and continued education. Supervise the project management duties that include the approval of timesheets, project specification, drawings, purchase orders, requisitions, correspondence, travel, purchase order completion of contract pay requests. Meet regularly with subordinate staff to discuss office procedures, work assignments and Division issues and goals. Addresses performance issues promptly and uses progressive and corrective action to resolve employee performance problems. Updates, discusses and presents Performance Planning and review forms, position descriptions and office procedures to subordinate staff. Provides each employee with a performance review within the designated time period in accordance with established rules and procedures. Ensure staff attend necessary training with designated time frames. Follows established rules, regulations and procedures for attendance and leave, travel reimbursements, appointment procedures, affirmative action and invoice processing. Duties contained in numbers three through eight were expanded from his earlier 1999 position description. The 2001 position description also had expanded supervisory or managerial duties contained in its other sections. The description stated, in relevant part: 40% preventive Maintenance: * * * * 2. Ensure the desired maintenance is being performed on a timely basis that does not fall within normal operations. * * * * Assist in providing engineering direction on system modifications, installations, upgrades and also see that the actual preventive maintenance efforts are being carried out. Set priorities for maintenance projects; * * *. * * * * 10% Specifications: * * * * 2. Monitor contractors through contract period for compliance with specifications. * * * * Instruct user personnel on the prescribed utilization, operation, testing and maintenance of alarms on the alarm systems installed. * * * * 10% Other: * * * * Keeps supervisor fully informed regarding work-related activities, relevant issues, upcoming events and potential problems. Ensures requests for leave are submitted and approved in accordance with established rules and Division procedures. * * * * Petitioner remained employed under the new classification until his termination on August 12, 2002. Petitioner was terminated in part for failing to perform his duties as a supervisor in overseeing the timely performance of repairs and setting priorities for accomplishing those tasks. The evidence demonstrated that Petitioner’s supervisory duties were expanded to include a significant amount of supervision and management. However, the evidence did not demonstrate that Petitioner actually spent a majority of his time supervising his staff. The evidence did show that he did spend some amount of time engaged in non-routine, non-clerical activities that involved the exercise of independent judgment, combined with a significant role in employee personnel administration in that he had the authority to effectivey recommend employment actions. The fact that he did not exercise such authority is not controlling and only demonstrates that the need for such action had not arisen. Given these duties, the reclassification of Petitioner’s position was appropriate under the Service First Initiative.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position was appropriately reclassified as Select Exempt Service. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2007. COPIES FURNISHED: Avery McKnight, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950 Linda South, Secretary Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950
