The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2018.
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
The Issue Whether or not Respondent Alachua County has committed an unlawful employment practice by terminating Petitioner due to her "handicap" of obesity.
Findings Of Fact Petitioner was a 43 year old white female, five feet-three inches tall, and weighing 265-270 pounds on the date of formal hearing. At all times material, she has weighed in excess of 200 pounds, the weight at which she was initially employed by Alachua County in January, 1980. Petitioner considers herself "obese". At the onset of her employment with Alachua County Department of Emergency Medical Services (EMS), Petitioner performed as a standby driver. She previously had been certified as an Emergency Medical Technician (EMT) by the State of Florida in 1978 and as a paramedic in October, 1979, but she did not begin to function as a paramedic for Respondent County for a period of time after her initial employment. Petitioner's employment application made no claim of "handicap" by obesity or otherwise. Petitioner passed a medical examination most recently in 1988. See, infra. The physical examination did not indicate Petitioner's weight impaired her functioning successfully as a paramedic. Petitioner has had a weight problem all of her adult life. Although Petitioner testified that the only times she has had marked weight loss success has been under medical supervision accompanied by the administration of pharmaceuticals, either orally or by injection, there is no expert medical evidence to establish whether her obesity is endogeneous (metabolic) or exogeneous (caused by overeating). There is no competent evidence upon which to find Petitioner's obesity is physiological in origin or that it is permanent. There is competent evidence that Petitioner's obesity was a source of concern to fellow employees and to certain of her supervisors for some period of time even before 1987. In 1987, the County did not fund a weight reduction program suggested by EMS Director Cunningham and agreed upon between Cunningham and Petitioner. There is, however, nothing to show that the County was obligated to fund such a program. Under the threat of job loss, Petitioner agreed to be physically evaluated as to her ability to perform her job, and she was given a special physical evaluation and job evaluation even though she was not on either a probationary or conditional status. She passed each of these. In early July, 1987, Petitioner was required to undertake a special agility test even though Alachua County had never required any other permanently employed EMT or paramedic to take such a test. The test involved simulated emergency job responses and was very physically demanding. Petitioner passed it. Despite the grueling hours of being a paramedic, Petitioner was also able to hold outside part- time employment. Nonetheless, some supervisors and co-employees continued to perceive Petitioner's obesity as a job impediment even though she had demonstrated that it was not. After satisfying the physical agility test, Petitioner was taken from a less strenuous zone and reassigned to one of the busiest zones in Alachua County and the only remaining zone that still required two man stretcher lifting. There is no direct evidence that the County could not assign paramedics to its various zones at will. There is no competent evidence to show Petitioner's weight problem has significantly impaired her normal functioning so as to render the resulting condition "handicapping" within the meaning of Chapter 760 F.S. Two instances formed the basis of Petitioner's termination. Petitioner offered plausible explanations for her performance in each incident, but upon the more credible evidence of Dr. Orban, it is found that approximately March 29, 1988, Petitioner responded to a motor vehicle accident and delayed immediate transport of an injured person to the hospital which was less than two minutes away by ambulance in favor of continuing attempts to start intravenous (IV) intubation and use of a mass (blood pressure stabilizing) suit, which would be treatment more suitable for a long transport. Also, upon the eye witness testimony of EMS District Chief Karen Newman,, who is also a paramedic, it is found that on April 17, 1988, Petitioner responded to a gunshot wound call and was unable with two attempts to start an IV or its catheter into the victim. Although Petitioner had started the victim on oxygen, she had failed to bandage his abdominal wound which clearly evidenced blood. This situation delayed arrival of the victim at the hospital. Ms. Newman completed the IV intubation quickly, herself, en route to the hospital with Petitioner's help. Dr. Orban and Chief Newman respectively testified that these situations which they observed were below the paramedic standards of care. As initially reported, the March incident had not been dealt with as a disciplinary matter and during the month between incidents, the Petitioner was not disciplined. Petitioner was suspended after the April incident. Dr. David Orban is employed by Shands Teaching Hospital at the University of Florida and functions as the Medical Director of Alachua County EMS, pursuant to contract. Dr. Orban testified that in May, 1988, after reviewing written reports and orally consulting supervisors and fellow-employees on Petitioner's conduct, he had concluded that Petitioner was not performing within the standards of care of a paramedic and removed her right to practice medical care under his license. In reaching his conclusion, it is clear that Dr. Orban also relied in large part on far more detailed hearsay characterizations given the foregoing and other incidents by other County employees, some of whom may have perceived Petitioner's weight as being a problem when it was not, but the doctor's relying on such hearsay statements at that time was not a divergence from the County's or the doctor's standard supervisory procedure, and Dr. Orban also at that time had formed his own opinion of Petitioner's competency based upon the single occasion of personal observation in March. Ms. Newman had never previously worked with Petitioner, and therefore her absence of any opportunity for prejudice supports her credibility as to the observed details of the April incident. Petitioner's weight was not a factor in Dr. Orban's personal observations or those of Ms. Newman. Dr. Orban advised Respondent of his decision by a letter dated May 16, 1988. Although no action has to date been taken by the State against Petitioner's licenses, she cannot practice except in conjunction with the supervision of a licensed physician. Since Dr. Orban would no longer accept the oversight responsibility of the Petitioner, Petitioner could no longer operate in the Alachua County EMS. Following the termination of Petitioner's right to function under Dr. Orban's license, Alachua County terminated her employment as a paramedic. At some point, the County offered her secretarial employment which Petitioner rejected due to lower salary and confined, sedentary working conditions. The subject of Petitioner's weight did not become a part of the proceedings that led to Petitioner's termination by the County. No other permanently employed EMT or paramedic received termination as a result of single instances of similar competency incidents. In similar situations, other employees variously were suspended, or required to return to driver status, or were required to take further courses or training, or they were issued written reprimands only. Except for the foregoing 1988 incidents, Petitioner has consistently had better than average job evaluations. Her evaluations were as follows: 1/16/81 - Good (26 on 40 point scale) 3/28/81 - Very Good (2.73 on 4.0 scale) 5/23/81 - Good (2.46 on 4.0 scale) 2/10/82 - Very Good (2.73 on 4.0 scale) 8/11/81 - Very Good (2.93 on 4.0 scale) 1/26/83 - Very Good (3.06 on 4.0 scale) 7/26/82 - Very Good (3.40 on 4.0 scale) 2/01/84 - Very Good (3.2 on 4.0 scale) 7/01/85 - Very Good (3.33 on 4.0 scale) 8/03/84 - Very Good (3.13 on 4.0 scale) 7/25/83 - Very Good (3.0 on 4.0 scale) 3/12/85 - Very Good (3.0 on 4.0 scale) 7/20/86 - Very Good (3.33 on 4.0 scale) 2/28/87 - Good (2.6 on 4.0 scale) 6/28/87 - Very Good (3.0 on 4.0 scale) The Petitioner has had no prior substantial disciplinary history and has never previously been suspended from her job nor has she ever been held back from any merit raises. However, upon the testimony of Kevin Rolfe, it is found that Petitioner's ability with regard to institution of intravenous tubes (IVs) was of concern to at least one superior in 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Human Relations Commission enter a Final Order dismissing the petition herein. DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1548 The following constitute specific rulings, pursuant to Section 120.59(2), F.S. upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1, 2, 4, 5, 7, 15, 16, 22, 32, 33, 37, 38, 39, 46, 52, 63, 70 and 71 are accepted. 3, 9, 10, 11, 12, 13, 14, 17, 27, 28, 31, 35-36, 40, 42, 44, 47, 50, 55, 59-62, 65-69, 72-73 are subordinate, unnecessary, or cumulative to the facts as found. Sentence 1 of PFOF 6 is accepted; the remainder is subordinate, unnecessary or cumulative to the facts as found. 23 is incompetent and immaterial 18, 20, 24, 25, 26, 29, 30, and 49, are rejected as out of context or mere recitation of unreconciled exhibits and/or testimony. Most is also uncorroborated hearsay upon which no finding of fact can be made. Otherwise rejected as not in accord with the record as a whole and/or not credible or not competent. 34, 43, 45, 53, 56-58 are accepted in part; the remainder is subordinate. 8, 21, 41, 48, 50, 51, 54, 64 to the extent not accepted are rejected as not supported by the greater weight of the credible, competent evidence as a whole or not necessary to resolve the dispositive issues of this case. Accepted that this is Petitioner's perception of events. Respondent's PFOF 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 14, 15, 16, 17, 18, and 19 are accepted. 8, 10, and 20 is subordinate, unnecessary, or cumulative to the facts as found. 12 is rejected because as stated is misleading and not entirely supported by the record. See the facts as found. COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615 Thomas A. Bustin County Attorney Post Office Drawer CC Gainesville, Florida 32602 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 =================================================================
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of race, color, sex, religion, presumed handicap, national origin, age, and marital status; and whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Webster is a female, Caucasian, who prefers to be referred to as "a White Anglo," and a Quaker of German descent. She was born on September 7, 1943. At the time of the hearing, she was married. She is a member of the protected class as it relates to discrimination. At all times material hereto, the Clerk was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Ms. Webster has a Bachelor of Business Administration and a Master of Business Administration. She was a certified public accountant (CPA) but voluntarily relinquished her Florida CPA license to the Board of Accountancy in October 2003. Ms. Webster had been an employee with Metropolitan Dade County since February 21, 1978. She was employed with the Clerk as an Accountant II in the Comptroller's Division since 1982. Adolphus James was the supervisor of her accounting unit and to whom she reported. Mr. James' supervisor was Margaret Enciso, the Deputy Comptroller. Ms. Enciso reported to Martha Alcazar, the Comptroller. Ms. Alcazar reported to Ricky Schechtman, the Director of the Office of Administrative Services. Ms. Schechtman had the authority to terminate employees under her supervision. Ms. Webster's unit was comprised of employees who were majority Hispanic descent. In the unit, she saw herself as a "minority White Anglo American woman of Quaker religious customs." She saw the Hispanic workers as shutting her out by speaking Spanish. Dismissal On August 10, 2005, Ms. Webster was issued a Disciplinary Action Report (DAR) by her supervisor, Mr. James. Mr. James was recommending her dismissal from employment with the Clerk, as her performance was unacceptable and in direct violation of personnel rules. In the DAR, Ms. Webster was charged with "violating the County's Personnel Rules, Chapter VIII, Section 7: Paragraph: A, B, D and S," which were indicated as follows: That the employee is incompetent or inefficient in the performance of his [sic] duty. That the employee has been offensive in his [sic] conduct toward his [sic] fellow employees, wards of the County or public. (D) That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him/her by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public. (S) That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employee and impairs the efficiency of the County service. Mr. James attached to the DAR specific facts and instances. Some of the facts and instances included the following: Non-Performance: Ms. Webster failed to complete assigned reconciliations--after she returned from a medical leave of absence from February to mid-June, in a memo from Mr. James, dated June 19, 1995, Ms. Webster was given until July 14, 1995, to complete reconciliations of some general ledger accounts for May 1995; the reconciliations for May 1995 were not completed as directed; and two months of reconciliations were not completed as requested and they had to be assigned to other personnel. Insubordination--Ms. Webster "exhibited" gross insubordination toward Mr. James, on August 4, 1995, when she failed to meet with him after he repeatedly directed her to meet with him before she left for the day (the meeting was re- scheduled). Further, this instance was not the only instance where she failed to follow directives of Mr. James—“When he asks you [Ms. Webster] to refrain from certain behavior or when he explains your duties, you frequently directly ignore what he tells you and proceed to do only what you wish to do.” Disruptive Behavior--Ms. Webster exhibited disruptive behavior constantly. In particular, on August 7, 1995, she indicated to a co-worker, Julio Lucio-O'Farrill, who is Hispanic, that his constant working on his computer was disturbing her. Mr. Lucio-O'Farrill spoke with Mr. James who instructed Ms. Webster not to interfere with the co-worker doing his work. Later, Ms. Webster asked another co-worker, Devon Marrett, who is African-American, whether he knew anyone "like him [Mr. Marrett]" who could "take care of" Mr. Lucio-O'Farrill. Mr. Marrett inquired what Ms. Webster meant by her remarks, and she responded, "a big, black and ferocious man from Liberty City." On other occasions, Ms. Webster has requested information, which has nothing to with her duties and responsibilities, from workers outside her unit, and the workers felt that she was being disruptive in preventing them from doing what they were required to do. Further, on other occasions, Ms. Webster has approached workers, who were engaged in a conversation, and demanded to know what they were discussing and demanded to join in the conversation. Mr. James also attached to the DAR, the Metro-Dade Personnel Department Essential Job Functions Form; his memorandum to Ms. Webster, dated June 19, 1995, regarding "Work Assignments; the aforementioned reconciliations; and a memorandum from Mr. James to Ms. Webster, dated July 24, 1994, regarding "Work assignments and Performance." At hearing, as to the reconciliations, the evidence demonstrated that the expectation for Ms. Webster to complete the reconciliations was appropriate and warranted and that she failed to complete them. At hearing, as to insubordination, the evidence demonstrated that Mr. James gave reasonable directives, that the directives were lawful, and that Ms. Webster failed to comply with the directives. Further, at hearing, as to Ms. Webster's disruptive behavior, the evidence demonstrated that her attitude towards Mr. Lucio-O'Farrill was that he was a Hispanic who believed that women should be controlled by men but that she, being a "White Anglo" woman was not going to allow him to control her; and that he wanted her to be as a "wife" to him, but she was not going to do that. The evidence further demonstrates that her attitude towards him caused disruption in the workplace. As to Mr. Marrett, the evidence demonstrates that he was offended by Ms. Webster's remark to him, and that he believed that Ms. Webster was inquiring of him as to whether he knew of an African-American who would harm Mr. Lucio-O'Farrill. Both Messrs. Lucio-O'Farrill and Marrett were extremely concerned with Ms. Webster's behavior. Mr. Lucio- O'Farrill was so concerned that he called the police, and a police report was filed. At hearing, Mr. James testified that he was very concerned with Ms. Webster's behavior, that he had done what he could do for her, and that he had to consider the well-being of his staff and the office, as well as her behavior. The undersigned finds his testimony credible. On August 16, 1995, Ms. Schechtman met with Ms. Webster to provide Ms. Webster an opportunity to address the allegations set forth in the DAR. Ms. Webster was unable to verbally communicate her response and, therefore, Ms. Schechtman permitted Ms. Webster to submit her response in writing; which she did on or about August 18, 1995 and which consisted of several pages. Having considered the DAR and Ms. Webster's response, Ms. Schechtman decided to terminate Ms. Webster. By letter dated August 22, 1995, Ms. Schechtman notified Ms. Webster of her termination and, among other things, her rights to appeal. Suspension Prior to her termination, on February 13, 1995, Ms. Webster was suspended for six days (February 13 through 20, 1995) by the Clerk based upon a DAR dated February 3, 1995. On February 3, 1995, Mr. James issued a DAR against Ms. Webster. Mr. James was recommending her suspension from employment with the Clerk. In the DAR, Ms. Webster was charged with violating the "County's Personnel Rules, Chapter VIII, Section 7: Paragraph D" as follows: That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him/her by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public. Mr. James attached to the DAR specific facts and instances. Some of the facts and instances included the following: Recent Absences--Ms. Webster had unplanned absences over the past two months which resulted in inconveniences to management and co-workers in that they had to perform her work requirements which were her responsibility; and indicates with specific instances of absences, beginning with December 8, 1994 through January 27, 1995, for which a leave of absence was granted, with some of the leave being granted for her inability to "focus" on her work, "accomplish work objectives," lack of job performance, "unusual and disruptive behavior" in the office, and to prepare to attend the fitness for duty physical examination (FFDPE). Unusual and Disruptive Behavior--specific instances and dates were indicated, beginning December 5, 1994 through January 30, 1995, in which Ms. Webster, among other things, was attempting to train an employee who was not under her supervision and she (Ms. Webster) became upset when it was brought to her (Ms. Webster's) attention; was going through the office listening to conversations, including management conversations, and being uncooperative and critical of co- workers; continued to complain about not having sufficient work space and about the work environment even after she was advised by her supervisor to concentrate on her work; repeatedly mentioned that group problems existed at work, which were related to ethnic backgrounds; refused to follow her supervisor's directives and exhibited behavior which was disruptive to the work environment; was continually counseled to work on past-due work but walked around the office, talking about ham operators; caused an employee concern due to what he described as a glazed look in her eyes; and was making strange and nonsensical telephone calls to other employees. Lack of Job Performance and Inability to Met [sic] Work Objectives--failure to meet required job requirements and related work objectives, with specificity; failure to be responsive to counseling and to show improvement; and, on occasion, been insubordinate when queried regarding status of past due work. Mr. James also attached a "Facts" section in which he indicated, among other things, the following: that a meeting was held on January 17, 1995, with Martha Alcazar, Acting Comptroller, Ms. Webster, and himself regarding a FFDPE scheduled for January 19, 1995, as a result of Ms. Webster's recent absences, disruptive behavior and lack of performance on the job; that the FFDPE was re-scheduled at a later date, January 26, 1995, at Ms. Webster's request; that Ms. Alcazar requested Ms. Webster to come into her (Ms. Alcazar's) office on January 20, 1995, to complete the paperwork for the FFDPE but that Ms. Webster failed to do so; that Ms. Webster failed to attend the FFDPE on January 26, 1995; and that she (Ms. Webster) was previously informed that her failure to comply with the directive may result in disciplinary action up to and including dismissal. Furthermore, Mr. James recommended that Ms. Webster be suspended without pay until she complied with all the requirements of a FFDPE; that she be required to participate in the Employee Assistance Program (EAP), which had been beneficial to her in the past, before returning to and during work; that management be provided monthly status reports from Ms. Webster's doctor and/or professional counselor; and that her failure to comply with the recommendations result in disciplinary action up to and including dismissal. At hearing, Mr. James testified that Ms. Webster's behavior gave him more concern than anything else in that it was unusual for her and her work pattern and that he wanted to help her, as much as he could, with her behavior and retain her position. The undersigned finds his testimony credible. By letter dated February 13, 1995, the Clerk notified Ms. Webster that she was suspended without pay until she submitted to a FFDPE and complied with the recommendations associated therewith and that it was recommended that she participate in the EAP, with monthly status reports provided to management from her doctor or professional counselor. He further advised her that she had two weeks to comply, and, if she did not, disciplinary action would result up to and including dismissal. A letter dated February 3, 1995, was also sent to Ms. Webster by Martha Alcazar, the Acting Comptroller. Ms. Alcazar indicated, among other things, that a meeting was held on January 17, 1995, with Mr. James, Ms. Webster, and herself regarding a FFDPE scheduled for January 19, 1995, as a result of Ms. Webster's recent absences, disruptive behavior and lack of performance on the job; that Ms. Webster was informed at the meeting that failure to comply with the directive may result in disciplinary action; that Ms. Webster requested a re- scheduling of the FFDPE for January 26, 1995; that Ms. Webster failed to appear for the FFDPE; that, as a result of Ms. Webster's failure to appear, she failed to comply with a direct order; and that her disciplinary action session was scheduled for February 9, 1995, specifying the particular violation. By letter dated February 14, 1995, Ms. Webster was notified by the Clerk that, among other things, her examination was scheduled for February 21, 1995. He further advised her that her failure to comply would result in disciplinary action up to and including dismissal. By letter dated February 22, 1995, the Clerk notified Ms. Webster that, among other things, her psychological evaluation was scheduled for February 28, 1995. Again, he further advised her that her failure to comply would result in disciplinary action up to and including dismissal. By letter dated March 10, 1995, the Clerk clarified his letter dated February 13, 1995, regarding the results of her disciplinary action hearing. He advised her, among other things, that the dates of her suspension were February 13 through 20, 1995, a six-day suspension, and that beginning February 21, 1995, she was placed on administrative leave, pending the results of the physical and psychological examinations. By letter dated March 23, 1995, Ms. Alcazar notified Ms. Webster, among other things, that her (Ms. Webster's) doctor indicated that she (Ms. Webster) should return to treatment with her (Ms. Webster's) physicians who should provide the Clerk with progress reports and her recommendations concerning ability to return to work and that, based on the progress reports, Ms. Webster would be contacted regarding the terms and conditions of her returning to work. In letters from a psychologist and a psychiatrist, dated April 12 and 19, 1995, respectively, both recommend that Ms. Webster be permitted to return to work. Neither the psychologist nor the psychiatrist was performing the FFDPE. By letter dated May 9, 1995, Mr. James notified Ms. Webster, among other things, that her FFDPE was scheduled for May 12, 1995. The physician who performed the FFDPE recommended on May 12, 1995, that Ms. Webster be returned to her previous duties. Appeal of Suspension and Dismissal Ms. Webster appealed her six-day suspension and dismissal. By agreement of the parties, the cases were heard by a Hearing Examiner of the American Arbitration Association in a two-day hearing. The Hearing Examiner rendered his decision on March 1, 1996, with findings of fact and conclusions, and recommended sustaining the six-day suspension and dismissal of Ms. Webster. The Hearing Examiner's findings included a finding that Ms. Webster's response to the six-day suspension and dismissal did not refute the contentions of the Clerk and "to a great degree" address issues that were either "not relevant to the personnel actions" or "unrelated" to them. The undersigned concurs in the Hearing Examiner's findings. The Hearing Examiner's further findings included a finding that Ms. Webster's conduct constituted insubordination and that the testimony supports the violations in the DAR relating to the termination. The evidence in the instant matter also demonstrates that Ms. Webster engaged in insubordination and committed the violations indicated in the DAR regarding her termination. As conclusions, the Hearing Examiner included, among other things, a conclusion that the Clerk, as Ms. Webster's employer, had a responsibility to and did assist Ms. Webster in resolving the behavior that she was exhibiting; that Ms. Webster was clearly and repeatedly provided with warnings by her supervisor as to the consequences of the failure of her non- compliance with work standards and assigned work, but she still failed to comply; that her failure to comply adversely affected the work of the other employees in her unit; that her conduct and verbal statements towards her African American and Hispanic co-workers conveyed an attitude of intolerance and prejudice; and that she was provided ample opportunity to change her behavior but she failed to do so. The evidence presented in the instant matter demonstrates and supports the conclusions expressed by the Hearing Examiner. On March 20, 1996, the County Manager, Armando Vidal, P.E., having reviewed the record of the Hearing Examiner, upheld the six-day suspension and dismissal of Ms. Webster. Retaliation Ms. Webster filed a discrimination complaint with the Clerk's Affirmative Action Office (AAO) alleging that the DAR of August 10, 1995, (the dismissal) was in retaliation for her having filed a formal discrimination complaint with the Clerk's AAO on July 13, 1995. The complaint was against "management in general for employment actions taken and not taken against her and the manner in which her co-workers interact with her." The complaint related to behaviors of co-workers as perceived by Ms. Webster and her reaction based on her perception; the exhibited pattern of dominance by men over women; differential treatment with her than men because upper management suggested that she be placed on two medical leave of absences and a FFDPE be performed; a violation of Title I of the ADA when a vacancy occurred for the Deputy Controller position in that she was not considered due to her not applying because she was on medical leave; women in lower positions than men and performing equal work but not receiving equal remuneration; and the DAR of August 10, 1995. The complaint was investigated by AAO's Senior Affirmative Action Specialist, Carmen Dieguez, for which a report, dated August 21, 1995, of the investigation was prepared. In the process of preparing the report, Ms. Dieguez attended the hearing on the DAR of August 10, 1995, as an observer. In essence, Ms. Dieguez found Ms. Webster's formal discrimination complaint with the AAO to be meritless and concluded, among other things, the following: After having discussed the complainant's actions with her and management which precipitated the DAR and which are specifically addressed in said document and having attended the DAR hearing on August 16, 1995 as an observer, I conclude that Webster's superiors have not retaliated against her as, [sic] she alleges. The incidents described in the DAR of non- performance, insubordination and disruptive behavior appear to have been of concern to management even before Webster filed her complaint of discrimination. And, it is management's responsibility to discipline employees for what appear to be job-related reasons. . . . It is, therefore, concluded that the DAR presented to Webster is not intended to retaliate or otherwise discriminate against her. On August 25, 1995, the Director of AAO, Marcia Saunders, issued a report to the Clerk on Ms. Webster's formal complaint of discrimination filed with the Clerk's AAO. The report included Ms. Dieguez's report. Ms. Saunders concurred with Ms. Dieguez that Ms. Webster's complaint was meritless. Ms. Saunders stated, among other things, in her report the following: I have reviewed her [Ms. Dieguez's] report and the conclusions drawn therein of the seven allegations which were made. You will find that none have been found to be substantiated. To the contrary, there has been corroboration that she [Ms. Webster] instead, whether consciously or unconsciously, harassed her fellow-workers about diversity issues i.e. their 'group behavior patterns and communication styles' to the point that some individuals found her behavior to be offensive and intrusive. Webster's preoccupation with making assumptions about race/ethnic/cultural and her own religious differences may be somewhat misguided. . . . Webster also alleged that an August 10th D.A.R. she received was in retaliation because of filing this formal discrimination complaint. Dieguez attended the D.A.R. hearing as an observer to ensure the issues presented were not in regard to, nor appeared to be precipitated by this complaint. She [Ms. Dieguez] affirms that the issues addressed in the hearing were not retaliatory but a progressive process related to Webster's performance, insubordination and disruptive behavior. Discrimination statutes do not preclude an employer from exercising its right and responsibility to discipline an employee in accordance with lawful personnel rules and procedures. The evidence in the instant matter demonstrates that the retaliation purported by Ms. Webster is meritless. The undersigned concurs in the conclusion reached by the Clerk's AAO. At the hearing in the instant matter, Ms. Webster insisted, among other things, that her being a White Anglo Quaker caused communication and attitude problems between her and the Clerk's employees. She testified that the majority of the Clerk's employees were Hispanic and wanted her to act as a Hispanic woman as it concerned relations with Hispanic men, i.e., to act as their "wife"; and that they failed to understand her behavior, such as her shyness, low tone in talking, and the lowering of her head when she spoke. But, the evidence demonstrated that Ms. Webster, among other things, tried to force her ways upon them and acted irrationally when the employees would not conform to what she wanted. Further, the evidence at the instant hearing demonstrates that Ms. Webster stereotyped her fellow employees and made prejudiced remarks about them. Ms. Webster is correct that ethnic differences can cause communication problems but one cannot force someone to conform to one's way in order to communicate. At hearing, no evidence was presented demonstrating that similarly situated employees were treated differently. Ms. Webster presented evidence as to her financial situation since her termination. Ms. Webster presented evidence as to costs that she incurred associated with the hearing in the instant matter.
Recommendation Based on 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 discrimination complaint of Anne R. Webster against Metropolitan Dade County, Clerk of the County Court. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 July, 2006. COPIES FURNISHED: Anne R. Webster 12000 Northeast 16th Avenue, B-27 Miami, Florida 33161-6566 William X. Candela, Esquire Dade County Attorney's Office Stephen P. Clark Center 111 Northwest First Street, Suite 2810 Miami, Florida 33128 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
The Issue Whether Respondent discriminated against Petitioner based on her age as alleged in the Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed with the Florida Commission on Human Relations (FCHR) on February 26, 2003.
Findings Of Fact Petitioner is a female who was born April 29, 1946. At all times material to this proceeding, Respondent employed Petitioner as a sales person at a retail sales counter operated by Respondent, but located within a Burdines department store. Respondent did not have an on-site manager for this sales location. In December 1999, Petitioner received a routine performance evaluation signed by Joyce Rodriguez, who was Petitioner's supervisor. This was a favorable evaluation that rated Petitioner in each category as either having "Exceeded Standards" or "Achieved Standards." As a result of this favorable evaluation, Petitioner received an increase in her hourly rate of pay. There was no evidence that Petitioner was discriminated against by her 1999 performance evaluation or by the pay increase she received as a result of that evaluation. Ms. Shafi, the employee mentioned by name in Petitioner's Amended Charge of Discrimination, was not hired by Respondent for a management position, nor was she ever promoted to a management position. Petitioner has never applied for or otherwise requested a management position with Respondent. Opportunities for entry- level management positions exist only at retail locations with on-site managers, which would require Petitioner to transfer to another location. Respondent's management has discussed such positions with Petitioner at various times, but she failed to take advantage of any of these opportunities.
Recommendation Based on 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 filed in this case. DONE AND ENTERED this 6th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 6th day of October, 2003.
The Issue The issue is whether Respondent, the City of Ormond Beach (the "City"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2009),1/ by discriminating against Petitioner based on his race or by discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact The City is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Petitioner, a black male, was employed by the City on August 28, 2001, and assigned to the streets section of the public works department. On October 1, 2003, Petitioner was transferred to the stormwater maintenance section of the public works department, where he worked until his dismissal on July 8, 2009. At the time of his dismissal, Petitioner's job classification was Maintenance Worker II. He reported directly to stormwater supervisor Larry Haigh, who in turn reported directly to environmental systems manager Kevin Gray. At most times, there were eight or nine employees in the stormwater section, including Darren D'Ippolito, a Maintenance Worker IV who worked as second in command to Mr. Haigh and therefore had supervisory authority over Petitioner. Mr. Gray described Mr. D'Ippolito as a "lead worker" who reported directly to Mr. Haigh. Mr. Haigh described the stormwater section's duties as follows: We try to keep anything from flooding, whether it's roads, houses, parking lots, businesses. And we keep all the drains clear and clean during rainstorms, hurricanes. We sandbag City buildings, doorways, you know, keep water out. We take care of streets that are-- that have flooding issues. We go back and find out why they have those issues, and then we fix those issues. Petitioner's primary assignment in the stormwater section was to operate the reach-out mower, which is a large tractor with an extended boom that is used to mow and remove vegetation from the slope angles on swales and ditches throughout the City. The reach-out mower is in daily use because the City has a contract with the Florida Department of Transportation to maintain local rights-of-way. The reach-out mower has an enclosed, air-conditioned cab with a radio, and is therefore considered a desirable assignment within the stormwater section. Many other assignments in the section involve working outside in all manner of weather. The City had no formal job title for "reach-out mower operator." The mower was merely one of the many duties to which a Maintenance Worker II could be assigned. During the course of his employment with the City, Petitioner was placed on performance probation three times. The last such probation, called a "conditional evaluation" by the City, was put in place on December 31, 2008, as the result of an unsatisfactory annual evaluation. The City's employee performance evaluation document is broken into eight categories: appearance; attendance; interpersonal skills; communication skills; achievement of objectives and job knowledge; use and care of equipment; work productivity; and compliance with rules and regulations. In each category, the supervisor rates the employee on a scale of one to five, with "one" meaning below the acceptable standards and "five" meaning that the employee exceeds standards. A score of "three" means that the employee meets the acceptable standard. A score of "two" means that the employee's performance falls between meeting standards and below standards. A score of "four" means that the employee's performance falls between meeting standards and exceeding standards. The employee's overall performance score is calculated by adding the point totals for all eight categories (giving double weight to the scores for "achievement of objectives and job knowledge" and "work productivity"), then dividing the total score by ten. The overall performance is then judged according to the following scale: 5.00 to 4.41 Outstanding 4.40 to 3.71 Excels 3.70 to 2.91 Meets Standards 2.90 to 1.91 Improvement Needed 1.90 to 0.00 Unsatisfactory On his December 31, 2008, evaluation, Petitioner received the following scores and comments: Appearance: 5 "Willis is always neat and clean and in the uniform provided to him." Attendance: 1 "Willis has used 65 hours of unscheduled personal leave time during this ratings period. This abuse of unscheduled personal leave has become a pattern since FY 05/06, FY 06/07 and FY 07/08." Interpersonal Skills: 1 "Willis does not relate to other coworkers effectively and makes little effort to establish rapport. Wills [sic] seems to let his emotions affect interpersonal relationships. Willis needs to work on getting along better with his coworkers." Communication Skills: 2 "Willis' verbal or written communications usually contain necessary information, but most of the time are not accurate. We have been working with Willis to try and change this problem." Achievement of Objectives & Job Knowledge: 2 "Willis understands the goals and objectives of this Department. Willis only handles what he is assigned to do. If Willis is on the Reach-out mower, he's fine. If not, Willis requires constant direction and supervision." Use and Care of Equipment: 4 "Willis generally maintains equipment and promptly reports any deficiencies to his supervisor." Work Productivity: 1 "Willis has no initiative whatsoever. This has been a problem in the past and has not changed. Willis will only do work assigned to him and nothing more. Willis handles few tasks without direct supervision." Compliance with Rules and Regulations: 3 "Willis is in violation of the City's attendance policy." Petitioner's score for his overall performance was 2.2, which placed him in the category of "Improvement Needed." Mr. Gray placed Respondent on a 180-day "conditional evaluation" probation, during which Petitioner would receive a written evaluation every 30 days. In a memorandum to Petitioner dated December 31, 2008, Mr. Gray explained the process as follows: Willis, on December 31, 2008, you were provided with your Annual Employee Performance Evaluation. In your evaluation five (5) areas of "improvement needed" or "below standards" were noted: Attendance Pattern for use of unscheduled personal leave abuse. Interpersonal Skills Pattern of inability to relate to co-workers. Communication Skills Pattern of insufficient verbal communication skills. Achievement of Objectives & Job Knowledge Pattern of non-"Reach-out Mower" related activities. Work Productivity Pattern of lack of initiative to complete any work not specifically assigned but warranted. During this 180 day conditional you will be evaluated by three (3) different superiors every thirty (30) days. The first evaluation will be completed by a Maintenance Worker IV, the second will be completed by the Stormwater Supervisor and the third evaluation will be completed by a Maintenance Worker IV. This succession will be followed for the remaining three (3)-- thirty (30) day evaluations. It is imperative that you realize that during your six (6), thirty (30) day evaluation period [sic] the supervisor responsible will be required to visually observe your work habits and demeanor regarding the above listed five (5) areas of concern. I will be reviewing all six (6), thirty (30) day evaluations prior to presenting them to you. During the evaluation process the immediate supervisor responsible for that evaluation will be present, along with myself. If during any of the evaluation periods you feel the need to discuss any areas of concern, please feel free to notify your immediate supervisor and myself. Additionally, it is to be noted that if during any one (1) of the six (6) Employee Performance Evaluations you receive a rating of "Unsatisfactory" [it] may result in additional disciplinary action, up to and including termination. At the hearing, Mr. Gray testified that he appointed three evaluators at Petitioner's request because Petitioner did not believe that his immediate superiors, Mr. Haigh and Mr. D'Ippolito, would give him a fair evaluation. Petitioner requested that a second Maintenance Worker IV, Ray Back, be appointed to evaluate his performance.3/ Petitioner testified that Mr. Haigh and Mr. D'Ippolito were best friends from high school. Mr. D'Ippolito persistently "nitpicked" Petitioner's job performance whenever Petitioner was not on the reach-out mower. Mr. D'Ippolito would tell Mr. Haigh that Petitioner's work was too slow, and criticize him for "petty stuff" such as failing to sweep out the shop or take out the garbage. Petitioner believed that he was taken off the reach-out mower at the time of his evaluation to afford his superiors an opportunity to hypercriticize his performance. Petitioner felt that Mr. D'Ippolito was harassing him by following him around and watching him perform his work assignments. In fact, it was part of Mr. D'Ippolito's supervisory job to observe Petitioner's performance. Petitioner believed that Mr. D'Ippolito's attitude towards him was rooted in racial prejudice, though he never heard Mr. D'Ippolito say anything that could be construed as racist. At the hearing, a former stormwater section employee, DeWitt Fields, testified that he heard Mr. D'Ippolito use the word "nigger" repeatedly. Mr. Fields, who is black and worked for the City during 2006 and 2007, stated that he had a meeting with Mr. Haigh and Mr. Gray to complain about Mr. D'Ippolito's apparent belief that because he was a supervisor, he could say anything he pleased. Mr. Haigh said to Mr. Fields, "You're black. Don't you use that word?" Mr. Fields denied using the word. Mr. Fields was unsure whether Mr. D'Ippolito was disciplined. Mr. Fields testified that he resigned from the City because of his perception that he had been wronged by the racism in the stormwater department. Neither party questioned Mr. Haigh or Mr. Gray about Mr. Fields' allegations regarding Mr. D'Ippolito.4/ Mr. Fields testified that another Maintenance Worker II, Richard Hernandez, a Caucasian Hispanic male, witnessed Mr. D'Ippolito use the word "nigger" and that Mr. Hernandez provided a written statement to his superiors, but neither party questioned Mr. Hernandez about those events when he testified at the final hearing. Petitioner's failure to seek corroboration of Mr. Fields' story from witnesses who were present and testifying at the hearing, coupled with Mr. Fields' status as a disgruntled former City employee who only vaguely explained the circumstances of his departure, leads the undersigned to discount the credibility of Mr. Fields' allegations. Petitioner had no first-hand knowledge of the incident involving Mr. Fields. Petitioner simply observed that Mr. D'Ippolito seemed to treat Petitioner and another black employee, Greg Lewis, differently than he treated the white employees. For example, when a storm was approaching, Petitioner and Mr. Lewis were always assigned to make sandbags or perform other manual jobs such as "digging and fetching." Petitioner stated that he was not given the same opportunities as white workers to learn to run the backhoe or perform other non-manual tasks. However, Petitioner also conceded that he spent upwards of 90 percent of his working hours operating the reach- out mower. Within the stormwater section, this was considered a plum assignment. Mr. Gray testified that other employees, including Mr. Lewis and Mr. Hernandez, had requested the reach- out mower assignment.5/ The tone of Petitioner's testimony, not to mention the substance of Mr. Haigh's testimony6/ and the written performance evaluations, establish that Petitioner was unhappy whenever he was required to do anything other than operate the reach-out mower. Petitioner claimed that he heard Mr. Haigh make a racist remark in the workplace. In August 2008, during the NFL preseason, Mr. Haigh was holding forth to some employees in the front of the shop regarding the Jacksonville Jaguars game he had watched the previous evening. Mr. Haigh was unaware that Petitioner was close enough to hear his comments. According to Petitioner, Mr. Haigh stated that he did not see any football that night, just "a bunch of monkeys running up and down the field." Mr. Haigh flatly and credibly denied ever having made such a statement. Petitioner testified that he complained to Mr. Haigh about Mr. D'Ippolito's harassment and nitpicking of his job performance, but that Mr. Haigh did nothing to address the problem because of his longstanding friendship with Mr. D'Ippolito. Petitioner testified that he complained to Mr. Gray about the fact that Mr. Haigh and Mr. D'Ippolito were treating him differently because he was black, and that Mr. Gray accused him of "playing the race card." Petitioner stated that on one occasion, Mr. Gray told him that he needed to "man up" and handle matters on his own. Petitioner testified that, unlike many of the other employees in the stormwater section, he did not "sit and just run my mouth." Petitioner said what needed to be said regarding the work at hand, but he did not engage in much social chat with his co-workers. Petitioner believed that his natural reticence led to Mr. Haigh's finding that Petitioner lacked rapport with his fellow employees. In May 2009, just before the Memorial Day weekend, a large "no name" storm approached Volusia County. On May 21, 2009, Volusia County enacted a countywide state of emergency. On Wednesday, May 20, 2009, prior to the formal declarations of emergency, the City began preparations for the storm. The stormwater section began preparing sandbags for residents, checking "hot spots" in the City's drainage system to be sure the drains were open and clear, taking levels on lakes and ponds, using the pump station to lower the level on the City creek to ensure adequate water storage, and fueling the City's vehicles and equipment for use during and immediately after the storm. Mr. Gray testified that the stormwater section performed the "main thrust" of the City's emergency preparations. On either Thursday, May 21 or Friday, May 22, 2009,7/ Mr. Gray convened a meeting of all employees in the stormwater section. Mr. Gray told all the employees that they should expect a call to come to work over the Memorial Day weekend. He instructed the employees to check their rain gear and to be sure their cell phones and pagers had fresh batteries. Each employee of the stormwater section, including Petitioner, was issued a pager. During routine periods, employees took turns having "pager duty" for seven days at a time. The employee on pager duty received an extra dollar per hour for being on call, and was the first person called in to respond to problems occurring outside of normal working hours. During emergencies such as major storms, everyone in the stormwater section was placed on pager duty. If an employee was paged, he was expected to call in and then to report to work unless excused by his superior.8/ Petitioner was well aware of the City's pager policy, as he had earlier agitated for a more equitable distribution of "pager duty" and the extra pay that it entailed.9/ At the meeting, Mr. Gray specifically invoked the universal pager duty requirement for the upcoming weekend. Every employee of the stormwater section was required to carry his pager and to call in to work if paged. On Saturday, May 23, 2009, the rainfall continued unabated, causing the City to enact its own local state of emergency. Mr. Haigh paged all of the stormwater employees. When they returned his call, he told them all to come in to work. All of the stormwater section's employees, including Petitioner, worked that Saturday. At the end of the day, Mr. Gray told the stormwater employees "to go home, get some sleep, but to have their pagers on in the event we had to go into the next mode." Petitioner testified that he had never heard Mr. Gray say that the stormwater employees should expect to work on Saturday. He came in only because an employee in a different section told him that employees were expected to work on Saturday. Petitioner further testified that he and Mr. Lewis worked late on Saturday. By the time Petitioner returned to the station and prepared to go home, no supervisors remained at the workplace. Petitioner stated that no one told him to report to work on Sunday or told him that he had pager duty on that day. On Sunday, May 24, 2009, Mr. Haigh again paged all of the stormwater employees, including Petitioner. All of the employees except Petitioner answered the first page and came in to work. Mr. Haigh paged Petitioner several more times and received no response. Mr. Haigh also telephoned Petitioner's home, where he lived with his parents. Petitioner's father answered the phone and told Mr. Haigh that Petitioner had not come home on Saturday night and he did not know where Petitioner was. Later in the day, Mr. Haigh sent Mr. Lewis to Petitioner's house to see if Petitioner was home. Petitioner did not respond to any of Mr. Haigh's pages and did not report to work on Sunday. Petitioner testified that after the long work day on Saturday, he went out of town to relax on Sunday, spending the day with his fiancée in Daytona Beach. Though he did not realize it at the time, Petitioner did not have his pager with him on Sunday. The Memorial Day holiday was observed on Monday, May 25, 2009. It was a holiday for City employees. At 7 a.m., Mr. Haigh began paging all of the stormwater employees for the third time. Every employee except Petitioner responded to the page, and all of those who responded came in to work with the exception of Mr. Hernandez, who asked Mr. Haigh if he could be excused from reporting in order to take care of a family matter. Mr. Haigh gave Mr. Hernandez permission to stay home. Petitioner testified that he had a telephone conversation with Mr. Lewis on Monday morning. Mr. Lewis told Petitioner that he was at work. Petitioner stated that this was his first inkling that stormwater employees had been called in to work on Sunday or Monday. At about 10:30 a.m., Petitioner phoned Mr. Haigh, who made it very clear that he was upset with Petitioner for failing to call in or show up on either Sunday or Monday. Mr. Haigh asked Petitioner whether he had noticed that it rained 20 inches over the weekend. Petitioner stated that he had been in Daytona, and it didn't seem that bad there. Mr. Haigh stated that Petitioner told him a story about having to help a relative put her furniture on blocks because her house was about to flood. Petitioner testified that his aunt's house was indeed flooded during the storm, but he did not help with her furniture and denied having told this story to Mr. Haigh. Mr. Haigh's testimony is credited on this point. Petitioner asked Mr. Haigh if the stormwater employees were working. Mr. Haigh answered in the affirmative, but told Petitioner not to bother coming in because they were wrapping things up at the station. Mr. Haigh then reported to Mr. Gray that Petitioner had failed to return numerous pages and did not report to work on Sunday. Petitioner testified that it was only after his conversations with Mr. Lewis and Mr. Haigh on Monday that he realized he did not have his pager. He speculated that he either misplaced it or lost it on the job Saturday. He never found it. Mr. Gray made the decision to recommend that Petitioner's employment with the City be terminated. In a June 24, 2009, memorandum10/ to Assistant City Manager Theodore MacLeod, Mr. Gray wrote as follows, in relevant part: . . . Since his Conditional Evaluation, Mr. Littles has been assigned to operate the "Reach-Out Mower" and does a satisfactory job most of the time. The problem that has arisen is when he is not mowing. Several years of evaluations reflect that his interpersonal skills when working with other employees are less than satisfactory. Mr. Littles consistently receives low marks on: Attendance Interpersonal Skills Communication Skills Achievement of Objectives & Job Knowledge Work Productivity During Mr. Littles' seven plus years of employment he has been placed on a thirty (30) day, a sixty (60) day and a one hundred eighty (180) day conditional Performance Evaluation status for several or all the above listed areas. The latest incident happened when he was unavailable during the recent storm and in direct violation of Administrative Policy 53, Compensation During Declared Emergency. Expectations for duty, including reporting requirements before, during and after the emergency event are quite clear and conveyed to all Public Works employees. On May 23, 2009, the City of Ormond Beach enacted a local state of emergency for the May 2009 Unnamed Storm. The administrative policy states employees are required to report or call in during a declared emergency. On Sunday, May 24, 2009, Larry Haigh, Stormwater Supervisor attempted to call Mr. Littles at his home at 9:29 a.m. and spoke to his father, Mr. Littles, Sr., who stated "he didn’t come home last night. Try his pager." Mr. Haigh then attempted to contact Mr. Littles via pager to report to work. Mr. Haigh made three attempts (9:30 a.m., 10:08 a.m. and 3:27 p.m.) to contact Mr. Littles. Mr. Littles did not respond to any [of] the pages. Mr. Littles was issued a new battery for his pager on Friday, May 22, 2009. Mr. Littles finally made contact with Mr. Haigh on Monday, May 25, 2009, at 9:57 a.m.... The Public Works staff is repeatedly informed that they must answer all after- hour calls and/or pages, especially during hurricane season or in this case the Declared Emergency. Mr. Littles is paid to carry the after-hour pager under GEA contract.[11/] In addition, Mr. Littles repeatedly avoids the chain of command procedures and bypasses Mr. Haigh and responds directly to myself without informing Mr. Haigh, who is his immediate supervisor. My response to Mr. Littles in almost all cases is "have you checked with Larry" or "you need to check with Larry." Mr. Littles is currently on a conditional status for substandard evaluations and since this is the fifth month of that time, it is felt that there should be marked improvement in the five (5) items listed above. Mr. Littles in my opinion and the opinion of his immediate supervisors has shown little or no improvement in any area except for attendance. Recently, during the May 2009 storm event, Mr. Littles and another employee were sent to an address that had received structure flooding to assist the homeowner in correctly sand bagging her property. When Mr. Haigh went to follow up on the operation with the homeowner, the homeowner made the comment "if these guys are temporary labor, I would not ever bring them back." On another recent occasion, Mr. Littles disabled one of the fuel keys the department uses for miscellaneous and diesel fueling at the Fleet Facility. Mr. Littles is fully aware of the proper fueling operations but in this instance he punched in numbers that were not required, which resulted in the key being disabled. In this emergency, this key was necessary for the fueling of the numerous stormwater pumps in operation. When Mr. Haigh asked the question, "who punched the numbers in the fuel system," Mr. Littles stated he didn’t know. Mr. Haigh contacted Peggy Cooper, Fleet Systems Specialist to have the key reactivated and requested information on who had placed the personal fuel key with the miscellaneous key. It appeared that it was Mr. Littles who had punched in the numbers 5957 on May 27, 2009, and was the last person to use the fuel keys.[12/] There are several additional instances that are troubling to me regarding Mr. Littles and should not be occurring from a seven year employee. His job knowledge and ability to perform his duties at this point should be satisfactory at minimum. I am therefore requesting that Mr. Littles employment with the City of Ormond Beach be terminated. At the hearing, Mr. Gray testified that he made the decision to recommend termination despite the fact that Petitioner still had one month to go on his 180-day conditional evaluation period. Mr. Gray noted that the last evaluation in June 2009 was the worst of the five that Petitioner received during his probation, and that Petitioner's failure to report on Sunday, May 24, was the final straw. Mr. Gray stated that if an employee were not on probation, failure to respond to a superior's page would call for a verbal or written reprimand if it were a first offense. However, Petitioner was on his third probation in seven years. Moreover, Petitioner had already received a written warning for failing to respond to radio and pager messages from Mr. Haigh on December 24, 2008.13/ Mr. Gray testified that he discussed the recommendation with Mr. MacLeod, the City official who would make the final decision on Petitioner's termination. Mr. Gray testified that they did not talk about Petitioner's allegations of racial discrimination because he was unaware of any such allegations. After receiving Mr. Gray's written recommendation, Mr. MacLeod informed Petitioner of his right to a predetermination conference at which he could present any information in his own defense. The predetermination conference was held on July 2, 2009. Petitioner attended the conference, accompanied by his GEA-OPEIU representative Mike Haller. Attending with Mr. MacLeod was the City's interim Human Resources Director, Jayne Timmons. Petitioner was afforded the opportunity to defend his actions over the Memorial Day weekend and as to the other incidents discussed in Mr. Gray's recommendation memorandum. After the conference, Mr. MacLeod made the decision to support Mr. Gray's recommendation. By letter dated July 7, 2009, Mr. MacLeod informed Petitioner that his employment with the City was terminated, effective July 8, 2009. The letter informed Petitioner of his right to appeal the determination to the City's Human Resources Board or, in the alternative, to utilize the grievance procedures under the GEA-OPEIU's collective bargaining agreement with the City. Petitioner did not appeal to the Human Resources Board, nor did he file a grievance under the collective bargaining agreement. At the hearing, Petitioner sought to explain the incident referenced in Mr. Gray's termination letter regarding the disabling of the fuel key. He essentially blamed the problem on Mr. Lewis, who had either forgotten his key or could not get his key to work. Petitioner lent his fuel key to Mr. Lewis, who could not make it work. Petitioner then tried, and could not make it work. The next thing Petitioner heard about the matter, Mr. Haigh was accusing him of intentionally disabling the fuel pump. Even if Petitioner's story regarding the fuel key is accepted, it does not establish that his superiors were wrong to discipline him. Petitioner concedes that he was involved in the incident that disabled the fuel key. When Mr. Haigh first looked into the matter, Petitioner denied knowing anything about it, which necessitated further investigation. Petitioner's lack of candor alone warranted discipline, particularly because it led to the waste of Mr. Haigh's time and that of Peggy Cooper, the fleet systems specialist who determined that Petitioner was the culprit. Petitioner testified that he was placed on the 180-day probation shortly after he went to City Hall to complain "about how I was unfairly treated, and all these bad evaluations that I had been getting from year to year, and I'm seeing guys that. . . pretty much, ain't doing anything. They just getting by. [I called it] favoritism from Mr. Haigh." 14/ He implied that the probation was in retaliation for his complaint. As noted at Finding of Fact 22, supra, Petitioner claimed that he brought his allegations of racial discrimination to Mr. Gray, who accused him of "playing the race card" and advised him to "man up." Mr. Gray credibly denied that Petitioner raised any issues of discrimination with him until Petitioner turned in his written comments on the December 31, 2008, evaluation. Petitioner's comments included the following: "For the last seven years I've been working with the City of Ormond Beach, I have experienced nothing but harassment, hostile & offensive blatant discriminatory behavior on the part of management . . ." Petitioner also requested a meeting with the City's Human Resources Director and the City Manager to discuss his comments. Mr. Gray testified that he did not read Petitioner's statement as alleging racial discrimination, given Petitioner's history of complaining about general "favoritism" in the stormwater section, but that he nonetheless forwarded Petitioner's meeting request to the City Manager and the Human Resources Director. At that point, the matter was out of Mr. Gray's hands. Mr. Gray had no idea what resulted from the meeting or whether it ever occurred.15/ Mr. Gray recalled Petitioner coming to him to complain about Mr. D'Ippolito, but not because of any racial animus. Petitioner's complaint, as also voiced to Mr. Haigh, involved the fact that Mr. D'Ippolito was "spying" on him. The testimony at the hearing, including Petitioner's, established that Petitioner refused to accept that Mr. D'Ippolito had supervisory authority over him and was supposed to be watching his work. The attempts by Mr. Gray and Mr. Haigh to explain this fact to Petitioner fell on deaf ears. Mr. Gray also recalled that Petitioner complained to him about favorable treatment received by Mr. Hernandez. The gist of Petitioner's complaint was that Mr. Hernandez would not get dirty. Petitioner complained that other workers, including Mr. Hernandez, came in from their day's work as clean as when they went out, whereas Petitioner was required to do the dirty jobs. Mr. Gray testified that he had no response to this complaint. Some jobs in stormwater require the worker to get dirty and others do not. Moreover, said Mr. Gray, some workers are able to "work clean" and others are not. Finally, Mr. Gray was somewhat puzzled by the complaint because Petitioner's regular assignment, operating the reach-out mower, was one of the "cleanest" jobs in the stormwater section. Mr. Gray noted that performing maintenance on the machine involved oil and grease, but that the operational aspects of the reach-out mower did not involve getting dirty. At the hearing, Petitioner testified that his complaint to Mr. Gray about Mr. Hernandez was not confined to the question of getting dirty. Petitioner stated that after receiving his own poor evaluation in December 2008, he complained to Mr. Gray about Mr. Hernandez receiving an outstanding evaluation in spite of having spent all year on the job doing nothing but studying to become a police officer. Petitioner testified that Mr. Hernandez was assigned to operate the Vac-Con, a machine that clears storm drains, and that the Vac-Con truck just sat in front of the public works department while Mr. Hernandez studied. Petitioner stated that Mr. Haigh was aware that Mr. Hernandez was studying on the job and did nothing about it. Mr. Hernandez sat there reading in front of the other employees and took his books with him when riding out on a job. Petitioner did not know whether Mr. Hernandez was ever disciplined for studying on the job. Mr. Hernandez testified that when he was in the police academy he did bring his books in and read them on the job. Mr. Haigh was unaware that Mr. Hernandez was studying on the job until Petitioner and a co-worker complained to someone at City Hall. At that point, Mr. Haigh counseled Mr. Hernandez to "knock it off" and confine his studying to the lunch hour. Mr. Hernandez complied with Mr. Haigh's instruction and that was the end of the matter. Mr. Hernandez' version of these events is more credible than Petitioner's. At the hearing, Petitioner attempted to make a case of disparate treatment as between himself and Mr. Hernandez, focusing on the fact that Mr. Hernandez did not come into work on Monday, May 25, 2009, and received no discipline, whereas Petitioner's failure to come to work the previous day was deemed the "final straw" and cause for his dismissal. In making this case, Petitioner disregards the fact that Mr. Hernandez answered Mr. Haigh's page and requested that he be allowed to remain at home. Unlike Petitioner, Mr. Hernandez was excused from reporting to work. Mr. Haigh was not pleased that Mr. Hernandez asked for the day off, but had no cause to discipline Mr. Hernandez. Mr. Haigh pointed out, "I knew where he was," meaning that he could call Mr. Hernandez in to work if the situation changed. Mr. Haigh had no idea where Petitioner was or how to contact him. Mr. Hernandez' employee performance evaluation for 2008 resulted in an overall score of 4.5, "outstanding" on the City's scoring scale. On each of the eight evaluation criteria, Mr. Hernandez received either a "4" or "5." His superiors included no negative comments or suggestions for improving his performance. Given Mr. Hernandez' overall job performance, it is understandable that the episodes complained of by Petitioner did not result in formal discipline of Mr. Hernandez or greatly affect his performance evaluation. The evidence at the hearing amply established that Petitioner was at best a marginal employee for the City. Mr. Haigh testified that the other employees in the stormwater section did not like to partner with Petitioner because he would not work. For most of the day, Petitioner operated the reach- out mower alone, but when he came into the office to make out his daily reports, Petitioner did not get along with his fellow employees. Mr. Haigh testified that it was hard to make sense of Petitioner's written reports. Mr. Haigh stated that when Petitioner was not on the reach-out mower, he required direction at all times. If a supervisor did not tell him what to do, Petitioner would do nothing. Mr. Haigh described his shock when a homeowner complained to him about the poor job a presumed "day laborer" had done, only to realize that the homeowner was talking about Petitioner. At the time of his dismissal, Petitioner was five months into the third performance-related probation of his seven years with the City. After the events of the Memorial Day weekend, it was not unreasonable for Mr. Gray to conclude that further efforts to improve Petitioner's job performance were futile. Petitioner offered no credible evidence that the City's stated reasons for his termination were a pretext for race discrimination. Petitioner offered no credible evidence that the City discriminated against him because of his race in violation of section 760.10, Florida Statutes. The greater weight of the evidence establishes that Petitioner was terminated from his position with the City due to poor job performance throughout the seven years of his employment. The greater weight of the evidence establishes that the City did not retaliate against Petitioner for his complaint to Mr. Gray about discrimination. The evidence established that Mr. Gray properly forwarded Petitioner's complaint to the City Manager and Human Resources Director. Though the record was unclear as to the outcome of the City's investigation, the fact remains that Petitioner continued to work for the City for another six months after his complaint. Aside from Petitioner's intuitions regarding some kind of "strategy" to fire him, there was no evidence that Petitioner's supervisors were acting in less than good faith in their attempts to shepherd him through the probationary period and encourage him to improve his performance and save his job. The evidence established that Petitioner was the author of his own misfortune.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ormond Beach did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 5th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 October, 2011.
The Issue The issue is whether Petitioner was terminated unlawfully from employment by the City of Orlando (City) on the basis of his national origin and disability, and in retaliation for engaging in a protected activity.
Findings Of Fact Petitioner is a 55-year-old male of Hispanic (Cuban) heritage. He worked full-time as a police officer with the City until 2011, when he resigned his full-time status and was granted permission to begin working as a reserve officer. Reserve officers are appointed by and serve at the discretion of the Chief of Police. Only retiring or resigning sworn officers with at least ten or more years of consecutive service and in good standing can be members of the reserve unit. Currently, around two dozen reserve officers work for the City. A reserve officer must be a sworn law enforcement officer and able to exercise law enforcement authority and make arrests. If a reserve officer is unable to perform law enforcement functions, the Chief of Police will exercise his authority to withdraw his or her reserve status. Reserve officers have no employment or promotion rights. In addition to their contract assignment, they must satisfy a volunteer commitment by working at least 12 hours per month in either a patrol first-responder assignment or pre-approved special assignment. However, the volunteer commitment does not apply to reserve officers working at the Orlando International Airport (Airport). If a reserve officer is unable to fulfill this 12-hour requirement, the Chief of Police will exercise his authority to withdraw his or her reserve status. Beginning in January 2012, Petitioner worked exclusively as an Airport Specialist at the Airport on successive one-year contracts. Reserve officers working at the Airport are called Temporary Employee Police Reserve Officers (TEPROs). The TEPRO program was initiated by the City in 2012 and is designed to augment the number of police officers working at the Airport. This is because the Airport law enforcement contingent has been understaffed for many years.2/ TEPROs have arrest powers, wear uniforms, carry a gun and taser, and are required to take police action just like full- time law enforcement officers. The Greater Orlando Airport Authority (GOAA) contracts with the City to provide law enforcement services at the Airport and reimburses the City for salaries and equipment of full-time officers and TEPROs. Therefore, TEPROs cannot be assigned to any other division in the Police Department. Approximately 70 to 80 officers, including command staff, full-time officers, and TEPROs on one-year contracts, work in the Airport Division (Division). When the events herein occurred, the number of TEPROs working at the Airport was capped at nine. In January 2012, Petitioner entered into his first Temporary/Seasonal Employment Contract with the City, whereby the City agreed to employ Petitioner in the Police Department as a TEPRO for one year from January 2012 through January 2013. At that time, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. Petitioner was not hired for any particular assignment and could be assigned to any number of posts throughout the Division. In March 2013, March 2014, January 2015, and January 2016, Petitioner entered into new employment contracts with the City, whereby the City agreed to hire Petitioner as a TEPRO for one year. The last contract was executed on January 13, 2016, and ran through January 13, 2017.3/ When he signed each contract, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. On September 8, 2016, Petitioner was injured in an on- the-job accident at the Airport. He had pulled over a taxicab for a traffic stop when another vehicle struck his police car from behind, driving Petitioner underneath the dashboard and pinning him there while pushing his car into the taxicab he had stopped. The accident required Petitioner to undergo cervical fusion of his C-6 and C-7 vertebrae in February 2017 and damaged his ulnar nerve causing numbness in his right hand. He still experiences severe pain in his back and neck on a daily basis. Petitioner’s injuries limit his ability to perform manual tasks for extended periods. His musculoskeletal functions are substantially limited, and he cannot sit or stand for prolonged periods. The range of movement in his neck is also substantially limited. He is restricted from pushing or pulling any amount of weight, and from lifting more than ten pounds. As of April 2018, or 15 months after his last contract expired, these medical conditions still existed and prevented Petitioner from performing the job duties of a full-time police officer, such as carrying a weapon, making arrests, responding to calls, assisting other officers, and taking other police enforcement action. Unfortunately, there is still no definitive timetable for a full recovery. Although the City had the discretion to immediately terminate Petitioner’s contract when the accident occurred, it permitted him to assess the injury and address the medical issues. A few weeks after the accident, Petitioner requested an accommodation that would permit him to go on light duty. His request was approved. The City’s policy is to allow full-time officers to remain on light duty for no more than twelve months; they then are required to be medically retired or terminated from employment unless the Chief of Police, at his discretion, authorizes another six-month extension. While he was not sure, the Deputy Chief of Police believed this policy did not apply to reserve officers. Petitioner returned to work on October 13, 2016, in a light-duty capacity because of restrictions imposed by his physician. As noted above, these restrictions prevent Petitioner from responding to a situation that could escalate and require him to take police action. From October 13, 2016, through January 16, 2017 (or three days after his contract expired), Petitioner worked in a light-duty capacity in “district 285.” District 285 is the nomenclature for a police officer position in the Division’s office at the Airport that takes walk-up calls for matters such as stolen vehicles or answering calls from outside or within the Airport for general questions. The office is manned by an officer 24 hours per day, seven days per week. If the officer is on light duty, he works in plain clothes, does not carry a firearm, and, pursuant to Police Department policy, cannot take police enforcement action. District 285 refers to the position during the day shift, while district 185 refers to the position during the night shift. The position cannot be filled by a civilian. At least one officer must fill each shift (day and night) at the front desk of the office. The position is filled by a mix of full-time officers and TEPROs, a few of whom from time to time may be on light duty. If an officer on light duty works the front desk, this would enable an officer with no restrictions to be assigned to a patrol position. If a full-time or reserve officer without restrictions works the front desk, he or she is required to respond to calls for service and take police action for any incidents that may arise. From October 13, 2016, to January 16, 2017, Petitioner worked one to three shifts per week (ten hours per shift) in the front desk position. Officers on light duty are required to submit an Alternative Duty Update (Update) every 30 days in order to remain on light duty and to continue to work. On December 14, 2016, Petitioner provided the City with an Update in order to remain on light duty. The Update indicated that he still had work restrictions (no pushing, pulling, or lifting anything over ten pounds, limited bending, no overhead work, and changing his seated or standing position every 30 to 60 minutes); his physician recommended surgery (which was approved by Risk Management on January 18, 2017, and performed the following month); and there was no estimated date for his return to full duty. After the surgery, Petitioner would be in no-duty and light-duty status until the recovery was complete. The Chief of Police approved his alternative duty request on January 3, 2017. This allowed Petitioner to finish out his one-year contract, which expired ten days later. Contrary to Petitioner’s suggestion, the Update did not constitute a request for an accommodation under a new contract. On or about January 6, 2017, Petitioner was informed by his direct supervisor, Lieutenant Boos, that the City would not be offering him a new employment contract after his current contract expired a week later. When told that his contract would not be renewed, Petitioner did not request an extension of his light duty, a transfer to a light-duty position downtown, a leave of absence, or any other accommodation. Also, he did not ask the City to reconsider offering him a new contract. When he asked Lieutenant Boos if there was a reason why it was not renewed, his supervisor responded “no,” and Petitioner was told that the City just wanted to exercise its right not to renew the contract. Neither Lieutenant Boos, nor the commander of the Division, Captain DeSchryver, knew the exact reason for this action; they knew only that the Deputy Chief had told Captain DeSchryver not to renew the contract. According to Captain DeSchryver, he recommended that the City renew the contract, but after reviewing the matter, the City decided it needed a full-time officer at the Airport. Petitioner filed his TAQ with the FCHR a few weeks later. Even then, he did not suggest a specific accommodation. At the time his contract was not renewed, Petitioner was unable to exercise law enforcement authority or make arrests. The City could not assign Petitioner to the district 285 position for another 12 months because there was no timetable for his return to full duty. Also, the City needed all positions at the Airport staffed by as many full-duty officers as possible who were capable of performing the essential functions of the job. As explained by the Deputy Chief, the City needed to have “a number of full-body officers out there to work the calls and to assist each other and to keep everybody at the airport safe,” and not to just have a certain number of officers assigned to the Airport, even if they could not perform the essential functions of the job. The Deputy Chief went on to explain that “it was decided that we would take another course of action and terminate the contract and get a full-body person at the airport.” He also testified that the City “needed a full-fledged officer out there [at the Airport]”; “we needed an officer who could do the full job of a police officer”; “we just need to have as many full-time officers or full-service officers as we can”; and by hiring a full-time reserve officer, that would give him “a full-time officer out there who can respond to any kind of call out there and also assist the other officers out there to handle anything that comes up.” The Chief of Police added that “it’s really a waste of taxpayers’ money to keep someone on contract in light- duty status when they cannot perform the function of a reserve officer or TEPRO.” Petitioner contends the statements of the Chief of Police and Deputy Chief fall within the category of “the most blatant remarks,” whose intent could be nothing other than direct evidence of discrimination. However, this testimony is not evidence of discrimination, given the fact that Petitioner’s latest Update in mid-December 2016 indicated that he faced impending major surgery, he had numerous doctor-imposed physical limitations, and there was no timetable on when, if ever, he would return to full-duty status. For the first time, in his PRO, Petitioner contends that, as an accommodation, the City should have: (a) executed a new contract and assigned him to the district 285 position for another year, or (b) executed a new contract with a different reserve unit and transferred him to a light-duty position in another division. In essence, Petitioner argues that the City should have given him another one-year contract, even though he was awaiting major surgery (which was performed the following month) and would be on light-duty or no-duty status for an indefinite period of time. Indefinite light duty or no duty is not a reasonable accommodation. If the TEPRO contract was renewed, transfer to another light-duty position in another division was not possible. As a contract employee with GOAA, Petitioner could not be transferred to another division. If Petitioner signed a new contract with another reserve unit, it would be a burden on the City, and an unreasonable accommodation, to assign him to a light-duty position for an indefinite period of time. As it turns out, Petitioner would have been on light-duty or no-duty status for the duration of the renewed contract. Assuming another contract was executed in January 2018, Petitioner would still be on light duty as of April 2018, with no timetable for returning to full service, if ever. In sum, assuming that Petitioner’s injury constitutes a disability, there was no reasonable accommodation that the City could have offered. Petitioner was replaced by another reserve officer, Don Luezzi, a white male, who formerly worked in the Airport Division before he retired and expressed interest in an Airport Specialist position. In 2017, the City also hired Izzy Hernandez, a Cuban, as a TREPRO. His contract was renewed in 2018. Even though his contract was not renewed, Petitioner remained a reserve officer, serving at the pleasure of the Chief of Police. To retain reserve status, however, Petitioner was required to file Updates on his medical status. On April 2, 2017, Petitioner submitted an Update, advising that he remained in no-work status (due to his recent surgery) and that his next follow-up appointment was scheduled on June 1, 2017. On June 26, 2017, Petitioner was issued a Return to Duty Notice (Notice), advising him that his reserve status would be revoked effective September 8, 2017, if he was not able to return to full duty by that date. A Notice is an administrative form letter that is generated and issued automatically to all employees who are on alternative-duty status or medical leave for the preceding six months. From January 2017 through July 2017, Petitioner was unable to work any off-duty jobs as a reserve officer because of his medical condition and work restrictions. During this same time period, he was unable to work as a patrol first-responder or in a pre-approved special assignment as a law enforcement officer. He did not identify any reasonable accommodation which would have allowed him to do so. On July 26, 2017, Petitioner’s reserve status was withdrawn, effective immediately, by the Chief of Police on the advice of counsel and because Petitioner was unable to fulfill the requirements of the reserve unit. Actually, the reserve status could have been revoked earlier because Petitioner was unable to fulfill the requirements of the reserve unit, specifically the requirement that he volunteer 12 hours per month as a law enforcement officer. The withdrawal of Petitioner’s reserve status occurred six months after the TAQ was filed, was not considered by the FCHR, and is not a relevant issue. Assuming arguendo that it is a relevant consideration in the case, there is no evidence that this action was taken for discriminatory reasons. Petitioner is not precluded from re-applying for reserve status or as a TEPRO once he is able to perform the functions of a law enforcement officer and fulfill the requirements of the reserve unit. Petitioner contends the City treated another TEPRO, Kathy Tomas, a white female, more favorably than him by offering her a new one-year contract while she was on light duty. Ms. Tomas suffered an on-the-job injury on March 18, 2017, while attempting to arrest an unruly JetBlue passenger who was refused boarding because of too many carry-on bags. At the time, she was working under a one-year contract that expired in January 2018. Because of a fractured elbow and torn rotator cuff suffered during the arrest, Ms. Tomas went on light duty after the incident. After the elbow injury was resolved, she had surgery performed on her rotator cuff, and, as of April 2018, still remained on light duty. In September 2017, the City entered into new contracts with all of its TEPROs, including Ms. Tomas, in order to effectuate a pay raise. New contracts were necessary because the existing contracts provided for a set pay rate, and without a new contract, the new pay rate could not be implemented. If Ms. Tomas is unable to return to full duty at the expiration of her current contract in September 2018, the City will not enter into a new employment contract with her. Although her accommodation was longer, Ms. Tomas received the exact same accommodation as Petitioner. Petitioner was not treated less favorably than other employees who were similarly situated, based on his national origin or perceived disability. In his PRO, Petitioner asserts the December 14 Update is the protected activity that forms the basis for the retaliation charge. On the other hand, the City’s PRO asserts the only protective activity identified by Petitioner is his TAQ filed in March 2017. (The TAQ was actually filed on January 23, 2017, not in March 2017.) However, both assertions miss the mark, as the TAQ alleges the protected activity is Petitioner’s filing of a workers’ compensation claim. The exact date on which he filed his claim is not of record, but an email indicates that Petitioner spoke with the “workers’ comp case manager” on September 14, 2016, or eight days after he was injured. Resp. Ex. 1. In any event, the TAQ trumps the other assertions and is the only protected activity that has been considered. There is no evidence that the filing of the workers’ compensation claim was in any way related to the non-renewal of the TEPRO contract. The City’s decision to not renew the contract was not based on Petitioner’s heritage (Cuban), disability, or in retaliation for him filing a workers’ compensation claim.
Recommendation Based on 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, with prejudice. DONE AND ENTERED this 18th day of July, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2018.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of April, 2001.
Findings Of Fact The Parties. The Petitioner, June M. Smith, is a female. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration. The Department's Division of Facilities Management. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division: K. Wayne Smith was the Chief of the Bureau. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members. The Department's Decision to Employ Ms. Smith. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms. Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary. Ms. Smith's First Supervisor. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys." The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct. The evidence failed to prove that Mr. Medlock touched employees in a sexual way. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way. Ms. Smith's Second Supervisor. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt: Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller; Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition; Ms. Smith believed that Mr. Miller had trouble relating to people. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following: Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol; Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith; Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management; Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew leader instead of other crew members who had been with the Division much longer than Ms. Smith. Safety Meetings. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew. Troy Sullivan's Employment by the Department In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department. Mr. Sullivan was assigned to Ms. Smith's crew. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable. Ms. Smith also complained to Mr. LeDew about the decision not to promote her. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay. Bricks in Your Pants. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller. Jack Smith reported his comment to Mr. LeDew. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded. I. Ms. Smith's Third Supervisor. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner." The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted. The door to the restroom used by Ms. Smith and a few male employees had been kicked in. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex. The Incinerator Incident. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's complaint, or the lack of effort to follow up on the problem, was related to her sex. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident. When asked if there were any other problems she was having, she replied "no". Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines. Raymond Hines' Inappropriate Comment to Ms. Smith. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority. Ms. Smith and Mr. Earnest worked with Mr. Hines. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies." When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive. Mr. Ojala. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex. Ms. Smith's Final Supervisor. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision. Ms. Smith's Next to the Last Day of Reporting to Work. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr. Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence. Ms. Smith's Last Day of Employment with the Department. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence. Sexual Harassment Policy/Training. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5. The Department's rules on sexual harassment were provided to all new employees of the Department. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6. A copy of the Department's employee handbook was provided to all new Department employees. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex. The Use of Vulgar Language. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following: The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section. Violation of this requirement will result in disciplinary action being taken against the offender. The normal progression, depending on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed. See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker. The General Treatment of Ms. Smith. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex. Miscellaneous Complaints. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other. Ms. Smith's Subsequent Employment. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left. Ms. Smith's Complaint. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.
