Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
Findings Of Fact Respondent's Motion to Dismiss for Lack of Jurisdiction asserts that Petitioner was never an employee of Florida Crown and that Petitioner conceded this in attachments to her Petition for Relief. During the telephone motion hearing, Petitioner acknowledged that she was not employed by Florida Crown. Therefore, as a matter of fact, no employer-employee relationship existed between the parties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination. With this disposition, the Final Hearing in this case scheduled for May 5 and 6, 2006, is cancelled, and the file of the Division of Administrative Hearings is hereby closed. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S 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 23rd day of March, 2006. COPIES FURNISHED: Marcy S. Kelly Post Office Box 3003 Lake City, Florida 32056 Thomas W. Brown, Esquire Brannon, Brown, Haley & Bullock, P.A. Post Office 1029 Lake City, Florida 32056-2029 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000.
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which the Petitioners and the Intervenor assert that they are substantially affected by an agency statement that violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns the method of determining the order of layoff of some of the Respondent's employees.
Findings Of Fact Stipulated facts In 1996, the federal government modified and/or reformed welfare to require eligible participants to obtain employment. The Florida Legislature enacted Chapter 414, Florida Statutes, also known as the WAGES law, which required the Respondent to provide certain services to applicants for and participants in the WAGES program, including work activities, training, and other job-related services, which the Respondent termed "front-end services." Those services were primarily provided by Career Service employees of the Respondent. In 1998, the Florida Legislature amended portions of the WAGES law to require that local WAGES coalitions, instead of the Respondent, provide those front-end services to WAGES participants, effective October 1, 1998. As a direct result therefor, the Respondent was required to lay off approximately 700 career service employees. As a part of the implementation of the announced layoff of employees, Respondent requested approval of a method of determining the order of layoff, pursuant to Rule 60K- 17.004(3)(g), Florida Administrative Code, which provides: (g) Agencies shall then choose and consistently apply one of two methods, or another method as approved by the Department of Management Services, in determining the order of layoff. These methods are commonly referred to as "bumping." Option 1: The employee at the top of the list shall have the option of selecting a position at the bottom of the list based on the number of positions to be abolished, e.g., 20 positions in the affected class, 5 positions to be abolished. The employee at the top of the list can select any of the positions occupied by the 5 employees at the bottom of the list. The next highest employee on the list then has the option of selecting any of the positions occupied by the 4 remaining employees at the bottom of the list with the process continuing in this manner until the 5 employees at the top of the list have exercised their option. Option 2: The employee at the top of the list has the option of selecting any position occupied by any employee on the list with fewer retention points in the class. The next highest employee and remaining employees shall be handled in a similar manner until the list is exhausted. Rather than selecting Option 1 or Option 2, set forth in the published rule, the Respondent requested approval of an alternative method of determining the order of layoff. By letter dated August 17, 1998, the Department of Management Services (DMS) approved the method of determining order of layoff set forth in its correspondence. The method of determining the order of layoff is described by DMS in its approval letter as: The option you have chosen will allow adversely affected employees to select any position in the affected class and series, in the competitive area approved in our August 5, 1998 letter. Neither the Respondent's request for approval of the alternate method of determining the order of layoff, nor DMS' approval of that method, have been adopted in substantial conformity with Section 120.54, Florida Statutes. The Respondent's request for approval of the alternate method of layoff was intended to apply solely to the layoff occasioned by changes in the WAGES law. Facts based on evidence at hearing Florida Public Employees Council 79, AFSCME, is the certified bargaining agent for approximately 67,000 career service employees of the State of Florida. As such, it represents the employees of the Department who were affected by the subject layoff. The individual Petitioners, Betty Hall, Diana Lomas, Mercedes Valdez, and Elizabeth Judd, are members of the AFSCME collective bargaining unit. The challenged bumping procedure was not reached by collective bargaining. Under the alternative layoff method approved for the Respondent by DMS, employees with the greater number of retention points received enhanced bumping rights, permitting them to "bump" employees with fewer retention points in the same class and in the class series. Conversely, by this alternative procedure, employees with fewer retention points were accorded diminished protection against bumping. These employees could be bumped not only by employees with greater retention points in the class, but also by employees with greater retention points in other classes in the class series. For example, Consuelo Casanovas, from Petitioners' Exhibit 8, who was adversely affected in her position of Employment Security Representative I, was accorded bumping rights to positions in her class and to positions in the other two classes in the class series, Customer Services Specialist and Interviewing Clerk. Had the Respondent elected Option 1 or Option 2 in the published rule, Rule 60K-17.004(3)(g), Florida Administrative Code, Ms. Casanovas would not have had the right to bump to positions in the other two classes, and persons in those other two classes would not have been subject to bumping by Ms. Casanovas.1
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
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 Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 19th day of December, 2012.
Findings Of Fact Respondent is a cooperative association of 54 farm members that is engaged in the State of Florida in the business of harvesting sugar cane and the milling of raw sugar for its members. Respondent is divided for organizational purposes into a mill division and an agricultural division. Petitioner's employment with Respondent was exclusively with its agricultural division. The agricultural division is divided into a harvesting department, a transportation department, and an equipment maintenance and repair department. The equipment maintenance and repair department has a service center, three field operations, a truck and trailer maintenance repair shop, and a machinery maintenance repair shop. There are approximately 300 vehicles owned by Respondent, including large tractor trailers used for hauling sugar cane. Petitioner was initially hired on September 29, 1975, in the transportation department as a tractor-trailer operator. In November 1976, Petitioner was promoted to assistant truck foreman where his primary duty was dispatching trucks to haul harvested sugar cane from the field to the mill. This is a responsible position that involves calculation of the tonnage requirements of the mill which must be coordinated with the availability of product and drivers. In the early 1980's Petitioner began having problems with his immediate supervisor, LaVaughn Milligan. These problems continued to escalate since the supervisor believed that Petitioner was trying to undermine his authority and was making promises to the drivers that he could not keep. By 1985, Mr. Milligan was dissatisfied with Petitioner's job performance and was prepared to recommend the termination of his employment. At all times pertinent to these proceedings, Edward Mayo was the head of Respondent's maintenance and repair department. In 1985, a vacancy occurred in the position as truck and trailer maintenance and repair shop supervisor. There is a conflict in the evidence in that Petitioner testified that Mr. Milligan and Mr. Mayo asked him to accept the transfer, but Mr. Mayo testified that Petitioner requested the transfer. The testimony of Mr. Mayo is accepted as being more credible and it is found that Petitioner asked Mr. Mayo for a transfer to this vacant position. Mr. Mayo was aware of the problems that Petitioner was having with Mr. Milligan, but he decided to transfer Petitioner to this position despite these difficulties. Mr. Mayo recognized that Petitioner's difficulties with Mr. Milligan may have been the result of a personality conflict between the two men and he wanted to give Petitioner the opportunity to prove himself. The position Petitioner assumed in 1985 was the position he held when his employment was terminated. The truck and trailer repair and maintenance shop is responsible for the maintenance and repair of all of Respondent's vehicles and employs approximately 22 mechanics. Respondent was aware that Petitioner had no training or experience as a mechanic, and he was specifically instructed to make no mechanical decisions. Petitioner's responsibilities included the requisitions of parts, supplies, and equipment for his shop and the supervision of mechanic's work schedules. He was to act in a personnel management and administrative capacity. Petitioner satisfactorily performed his duties during his first year in the position. In late 1986, his job performance began to deteriorate and several complaints from different sources were made to Mr. Mayo about Petitioner's poor performance. Mr. Mayo became concerned about Petitioner's job performance and frequently discussed his concerns with Petitioner. Prior to October 1987, Respondent was unaware that Petitioner had a medical problem. Petitioner had been hospitalized in June 1987 while he was on vacation, but Respondent did not learn of that hospitalization until after October 1987. In October 1987, Petitioner was hospitalized for depression and for detoxification from his addiction to antidepressant drugs. Unknown to Respondent, Petitioner had been, for several years, suffering from anxiety, depression, and paranoia. Petitioner had experienced hallucinations and had been treated by several different physicians. He had been taking drugs for his conditions for some eight years, including Ativan, an antidepressant in the benezodiazpine family of drugs, to which he became addicted. Petitioner returned to work following his hospitalization in October 1987. He told Mr. Mayo that his hospitalization was related to the prolonged use of medication. Following return from his hospitalization in October 1987, Petitioner's job performance deteriorated to the point that he was unable to function at work and he could not perform his job. Petitioner had difficulty concentrating, demonstrated a short term memory deficit, and lacked energy. Petitioner began making mechanical decisions that he was not qualified to make and which posed a safety hazard. On December 10, 1987, Petitioner met with Dale Stacy, Respondent's Vice President of Agricultural Operations, Ray Campbell, Respondent's Personnel Manager, and Mr. Mayo. Petitioner was advised as to the deficiencies with his job performance. Respondent was willing to assist Petitioner and placed him on sick leave with pay until his doctors certified that it was medically sound for him to return to work. Medical assurances were requested out of a legitimate concern for the safety of Petitioner, Respondent's employees, and the general public. On December 22, 1987, Dr. Adele MacKay, Petitioner's psychologist, informed Respondent's assistant personnel manager that Petitioner was very anxious about being out of work and that she thought it would be best for Petitioner if he were allowed to return to work. Respondent was advised by Dr. Mackay that Petitioner may need support. On December 24, 1987, Petitioner was permitted to return to work. Mr. Mayo, Mr. Campbell, and Mr. Stacy continued to be concerned about Petitioner's ability to safely perform his job, but they also wanted to accommodate Petitioner because he was a long term employee. To achieve these ends, Arnie Raaum, Mr. Mayo's assistant and one of Petitioner's supervisors, was assigned the primary responsibility of monitoring Petitioner's performance to ensure that safety was not compromised and of providing assistance to Petitioner if necessary. In Mr. Raaum's absence, Louis Boglioli, another supervisor in the maintenance and repair department, was to perform these duties. In the absences of both Mr. Raaum and Mr. Boglioli, Mr. Mayo was to perform these duties. Between the time Mr. Raaum, Mr. Boglioli, and Mr. Mayo were assigned these duties and the termination of Petitioner's employment, Mr. Raaum spent considerable time in both monitoring Petitioner's performance and in correcting errors made by Petitioner. This assignment detracted from the ability of Mr. Raaum to perform his regular duties. Petitioner's condition and his ability to safely perform his job continued to deteriorate between December 1987 and December 1988. Despite Mr. Raaum's close supervision, many safety related incidents occurred which were the result of Petitioner's job performance. These incidents were documented in Petitioner's employment file, but there was no injury to any person or significant damage to property. By late 1988, Petitioner's condition had deteriorated to the point where he was unable to perform his job. He was unable to comprehend, remember, or follow instructions. In December 1988, Mr. Mayo, who had been following Petitioner's job performance, determined with Mr. Campbell and Mr. Stacy that Petitioner could not perform his job. Mr. Mayo had lost confidence in Petitioner's ability as a supervisor and felt that safety was being compromised by Petitioner's continued employment. Other job possibilities with Respondent were considered, but each possibility was rejected for legitimate business reasons. Petitioner believed that he had had a "nervous breakdown" and that he was capable of working in a position with less stress than his position as supervisor of the maintenance and repair shop. Because of this belief, Petitioner requested that he be transferred to his former position as an assistant truck foreman. This request was refused because of his previous difficulties in performing that job, because he was not capable of performing supervisory work, and because the position was not vacant. There were no supervisory level positions vacant that Petitioner was capable of filling. Petitioner's employment with Respondent was terminated on December 28, 1988, and he was given two months severance pay. Petitioner's termination was not a disciplinary matter for willful misconduct. Rather, Petitioner's employment with Respondent was terminated because Petitioner was not capable of performing his job duties.
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 Petitioner's charge of discrimination against Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of October, 1990. CLAUDE B. ARRINGTON 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 19th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 8-16 are rejected as being legal conclusions. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-10, 13, 15-16, 18-20, and 25 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 11-12. 17, and 21-24 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 26 are rejected as being recitation of testimony. The proposed findings of fact in paragraphs 27 and 28 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Isidro M. Garcia, Esquire Law Office of Joseph A. Vassallo, P.A. 3501 South Congress Avenue Lake Worth, Florida 33461 Margaret L. Cooper, Esquire Ruth P. Clements, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 Post Office Drawer E West Palm Beach, Florida 33402 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird Acting Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 NOTICE Of RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
