Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue The issue in the case is whether Respondent discriminated against Petitioner in disciplinary matters and in termination of Petitioner's employment because of race or in retaliation for complaints filed against Respondent.
Findings Of Fact Health Management Associates, Inc. (HMA), is the parent company for Respondent Orlando HMA, Inc., d/b/a University Behavioral Center (UBC). UBC provides residential care and treatment to juveniles. At all times material to this case, Respondent employed Walter F. Gibson (Petitioner) as a mental health technician. Petitioner is black. Petitioner's job evaluations were acceptable, and there is no evidence that he did not meet the requirements of the job at the time Respondent hired him. On November 24, 2004, the parties filed a Statement of Agreed Facts that provides as follows: UBC is a residential treatment center that offers a variety of programs including a program to which patients are committed by the courts under the direction of the Florida Department of Juvenile Justice. Petitioner was a staff member at Respondent's UBC facility. In late November 2002, a UBC patient accused Petitioner of abuse. Pursuant to UBC policy, Petitioner was placed on one week administrative leave pending an investigation. Petitioner was ultimately exonerated by Florida's Department of Children and Families and returned to work. Petitioner was paid for the full term of his administrative leave. Petitioner's initial complaint was made to the Florida Public Employees Relations Committee ("PERC") on or about January 6, 2003. PERC forwarded the complaint to the Florida Commission on Human Relations ("FCHR"). Petitioner's initial Charge of Discrimination claiming retaliation, FCHR Number 23-01298 was dismissed with a "No Cause" determination on May 7, 2003. On January 13, 2003, Petitioner filed a second Charge of Discrimination. On May 23, 2003, Petitioner received a paid suspension after an alleged conflict with co-workers. On May 27, 2003, Petitioner asked to amend his Second Charge of Discrimination to allege retaliation. On October 7, 2003, Petitioner was found allegedly asleep and his employment was terminated later that day. On October 9, 2003, Petitioner amended his Charge of Discrimination alleging that his termination was due to his race and in retaliation of his complaining of discrimination. Respondent has a policy against discrimination. According to the employee handbook, Respondent "acknowledges the commitment to Equal Employment Opportunity Employment regardless of race" and other protected classifications. The handbook sets forth a procedure for resolving issues related to harassment. The handbook also sets forth a "problem-solving procedure" to utilize in resolving issues related to working relationships. Petitioner received a copy of the UBC employee handbook upon beginning his employment with Respondent. The problem-solving procedure sets forth a series of steps, including verbal discussions with an immediate supervisor and then, if necessary, a department manager. If the problem cannot be resolved at that level, an employee is to contact the Human Resources Director who may ask the complainant to submit the complaint in writing. The written complaint is subsequently forwarded to the Facility Administrator for review and resolution. Although Petitioner questioned the practice of late- signed group therapy session notes (discussed herein) there is no credible evidence that Petitioner followed the appropriate reporting process prior to filing the complaint at issue in this case. There is no evidence that Petitioner's concerns of discrimination based on race or in retaliation for complaints filed were the subject of any dispute resolution procedures identified in the employee handbook. During the time Petitioner was employed as a mental health technician at UBC, group therapy sessions were conducted twice daily for UBC residents. The therapist or mental health technician in charge of the session was responsible for making notes about the session. Petitioner believed that session notes were to be signed by the therapist or mental health technician in charge of the session when the notes were written. Nonetheless, on occasion, Petitioner was asked to sign his notes some time after the sessions were completed, because he had not signed them when he drafted the notes. For reasons unclear, Petitioner apparently believed that late-signed session notes constituted Medicaid fraud. Petitioner testified that at some point during the spring of 2002, he questioned his supervisor about the legality of late-signed session notes and was told to sign them. There is no evidence that any employee of Respondent asked Petitioner to sign notes for therapy sessions Petitioner did not conduct. There is no evidence of any legal requirement requiring that session notes be signed at the time they are drafted. On August 2, 2002, Petitioner received a verbal reprimand for numerous instances of tardiness to work. Petitioner asserts that the reprimand was discriminatory; however, the evidence establishes that other employees tardy to work, including white, black, and Hispanic employees, received verbal reprimands. Some tardy employees of various races were excused for reasons that were determined to be legitimate by Respondent. There is no evidence that any employee's race was a factor in whether or not tardiness was excused. There is no evidence that Petitioner's race was a factor in the reprimand. The verbal reprimand was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. Petitioner testified that in August 2002, he anonymously called Respondent's corporate compliance telephone number to inquire as to whether the practice of late-signed session notes was illegal. Respondent's records do not indicate that such a call was received, and there is no evidence that Respondent took any related action. In November 2002, one or more patients at UBC apparently called the abuse hotline operated by the Department of Children and Family Services (DCFS) and reported Petitioner for alleged abusive behavior. Petitioner suggests that the abuse allegation came, not from patients, but from administration sources in the facility. There is no evidence supporting the assertion, which is also contrary to the Statement of Agreed Facts. Standard UBC practice when an employee is reported to the abuse hotline is to move the employee to another unit pending resolution of the matter. An employee may be prohibited from interacting with children while the report is pending. Depending on the circumstances, an employee may be suspended. A legitimate report of abuse is cause for termination of employment. Petitioner received a three-day suspension after the abuse allegation reported to DCFS was relayed to UBC. Upon returning to UBC, Petitioner was assigned to work in a different unit. The suspension was intended to be a paid suspension, but through clerical error, Petitioner was not paid for the three days at the end of the regular pay cycle. Petitioner did not notify anyone in a position to correct the non-payment at the time the error occurred. There is no evidence that the failure to pay Petitioner for the three-day suspension period was because of his race. The suspension was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. The abuse report was subsequently determined to be unfounded. Because the report was unfounded, UBC did not consider the paid suspension to constitute disciplinary action. On December 23, 2002, Petitioner sent what he believed was an anonymous email from a personal Yahoo.com email account to Respondent's corporate headquarters. The email does not specifically mention the issue of late-signed session notes or alleged Medicaid fraud. The email seeks "support to help eradicate ongoing abuse towards employees and helpless youth at one of your hospitals." The email alleges unidentified illegal and unethical behaviors and unspecified violations of corporate policy. The only factual assertion set forth in the email relates to an allegation that the "hospital director" speaking at a meeting said, "he would not support any staff member that file charges against any youth who violently attacks them." Unbeknownst to Petitioner, the email he sent to Respondent's corporate headquarters contained Petitioner's name. On December 24, 2002, the corporate headquarters forwarded Petitioner's email to David Beardsley, the UBC Administrator and Chief Executive Officer. Petitioner's email was also forwarded for investigation to Wayne Neiswender, the Director of Human Resources for HMA, who was based in Naples, Florida. On January 6, 2003, Petitioner submitted a complaint to PERC seeking protection under the "Whistleblower Act." Petitioner testified that he filed a complaint with PERC after being verbally instructed to do so by someone in the Office of the Governor. On January 13, 2003, Petitioner filed a charge of discrimination with FCHR (FCHR Case No. 23-00981) alleging that Petitioner had been discriminated against on the basis of race by being verbally reprimanded for tardiness in August 2002 and for being suspended based on the abuse allegation in November 2002. Petitioner asserted that non-black employees who committed similar infractions did not receive the same discipline. In mid-January 2003, Mr. Neiswender traveled to Orlando and met with David Beardsley to discuss the letter. Mr. Neiswender's investigation focused on gathering information to identify specific instances of the alleged unethical or illegal activities that Petitioner claimed in his email were taking place at the facility. Mr. Neiswender met with Petitioner at a time and location chosen by Petitioner. Petitioner refused to cooperate with Mr. Neiswender's investigation and refused to provide any specific information related to alleged Medicaid fraud or any other unethical or illegal activities he claimed in his email were occurring at UBC. Mr. Neiswender learned from Petitioner that Petitioner had not received payment for the three-day suspension during the appropriate payment cycle. Mr. Neiswender informed the appropriate UBC personnel and a check was issued to Petitioner to cover the unpaid time. There is no evidence that Respondent's failure to compensate Petitioner for the suspension period was based on race or in retaliation for any complaint. There is no evidence that prior to Petitioner's telling Mr. Neiswender about the non-payment, anyone at UBC other than Petitioner was aware that he had not been paid for the suspension period. Mr. Neiswender met with other UBC employees during his investigation, but was unable to identify any specific instances of unethical or illegal behavior. Mr. Neiswender concluded that Petitioner's allegations were unsupported by fact. Because the allegations involved improper use of public Medicaid funds, the allegations were also investigated and ultimately dismissed by the Office of the Inspector General for the State of Florida. On February 28, 2003, Petitioner filed a Whistleblower's complaint with FCHR (FCHR Case No. 23-01298) alleging that since August 4, 2002, he had been suspended in November 2002, and "harassed as recently as January 25, 2003," in retaliation for reporting allegations of Medicaid fraud to the HMA corporate compliance telephone line and to PERC. The investigation by FCHR of Case No. 23-01298 was terminated by notice issued on May 7, 2003. The Notice of Termination sets forth Petitioner's right to appeal the termination of the investigation. Petitioner did not appeal the termination of the investigation. During May 2003, Petitioner was working in a UBC program unit identified as "Solutions." The Solutions unit is physically divided into two units ("Solutions I" and "Solutions II") separated by the nurses' station and doorway. Calvin Ross, a black man, was Petitioner's supervisor. On May 13, 2003, Mr. Ross directed Petitioner to stay out of the Solutions I unit, because a female patient in Solutions I alleged that Petitioner acted improperly towards her. Mr. Ross told Petitioner to remain in the Solutions II unit until the matter was resolved. Although Mr. Ross did not identify the female patient to Petitioner, Petitioner believed he knew who the complainant was. Later during the week, Petitioner had several encounters with the complainant, including two incidents at the nurses' station during which Petitioner twice directed the complainant (who was unaccompanied by staff) to return to her unit and to her room. On May 13, 2003, a third encounter between Petitioner and the complainant occurred when Petitioner was called temporarily into the Solutions I unit to assist in returning an unruly male patient to his room. After the situation with the male patient was resolved, Petitioner did not leave the Solutions I unit, but instead saw and began to talk to the complainant. At the time of the encounter, the complainant was outside her room. Petitioner directed her to return to her room. The complainant had permission from the Solutions I staff to be out of her room, a fact of which Petitioner was unaware. The complainant reacted negatively to Petitioner's direction and became very emotional, crying and screaming at Petitioner. Prior to her interaction with Petitioner on that day, the complainant's behavior had been appropriate and controlled. Petitioner then became involved in a confrontation with a Solutions I unit staff member (a white female) in front of unit patients when the staff member explained to Petitioner that the complainant indeed had permission to be outside the room. Petitioner was unhappy that other staff had not supported his instructions to the complainant and told the staff member that she was "unprofessional" and "inappropriate" in such a hostile manner as to cause the staff member to become emotionally upset and to leave the facility before the end of her shift. Petitioner then had yet another confrontation with a different staff member (a white female) on the same day during which Petitioner in front of unit patients told the staff member that she was incompetent, and accused the staff member of joining with patients to "get him." Mr. Ross investigated Petitioner's conduct towards the co-workers on the day in question, and determined that Petitioner's behavior warranted a paid suspension. Mr. Ross was not aware that Petitioner had any pending complaints against the facility at the time he imposed the suspension. Mr. Ross' supervisor and the facility's Human Resource Coordinator approved the suspension. The evidence fails to establish that the suspension was based on race or in retaliation for any pending complaints filed by Petitioner. The employee who left her shift early had a letter placed in her personnel file cautioning that another incident of early departure would result in termination of her employment. Petitioner was also required to complete a Performance Improvement Plan, which he did successfully in June 2003. In September 2003, Respondent became aware that a night employee was discovered sleeping during working hours in the lobby of the facility. The employee supposedly began sleeping during a work-break and did not awaken to return to his shift. Because of previous problems with patients leaving assigned rooms and wandering freely into each other's rooms when unsupervised, Respondent regards sleeping by employees during work hours to be a serious issue. Employees on break are permitted to nap in their cars, but the UBC employee handbook specifically states that "sleeping on the job" will not be tolerated. While investigating the September sleeping incident, Respondent learned that a unit night supervisor was in the practice of allowing employees to combine multiple break time and to sleep "off unit" for the period of the combined break time. Respondent initially intended to terminate the sleeping employee, but because the unit supervisor permitted the practice, the offending employee was reprimanded and warned that another incident of sleeping would result in termination. The night supervisor's practice was not acceptable to administrators of the facility, and a memo dated September 25, 2003, was issued to all employees, including Petitioner, prohibiting the practice of combining break time. The memo further stated as follows: Sleeping: No staff member is to sleep while on duty at UBC. This includes all 3 shifts. Staff on the evening and night shifts are paid an extra differential based on the fact that these hours are perhaps more difficult to work. No sleeping at any time while in the building. In October 2003, Petitioner was found asleep while sitting in a chair in a unit hallway. Two employees, a nurse- manager and an orderly, observed Petitioner sleeping. The orderly called Petitioner's name once to awaken him, but was unsuccessful. After she called his name again, he woke up. The evidence further establishes that Petitioner failed to complete two sets of the "quarterly rounds" (which are done every fifteen minutes) intended to assure that patients are safely in their assigned rooms. Petitioner testified that he was not asleep, but had merely "dozed off" for at most 20 seconds before awaking. Petitioner's testimony on this point is discredited due to the fact that the orderly had to twice call his name before he awoke, and to his failure to complete two sets of quarterly rounds (covering a period of 30 minutes). As a result of being found sleeping while on duty, Petitioner's employment was terminated. Since the September 2003 memo was issued, employees found sleeping on duty have been terminated. Such terminations have included white and Hispanic employees. There is no credible evidence that any employee found asleep on duty since the memo has continued to be employed at UBC. There is no evidence that Respondent's termination of Petitioner's employment was based on or related to his race, or in retaliation for any complaint filed by Petitioner.
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 by Walter F. Gibson in this case. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of March, 2005.
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of 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 and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent is a Public Employer within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representation election petition under Florida Statutes, Chapter 447. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission. HEARING OFFICER'S REPORT The five issues were discussed at the hearing with the following results: It was agreed that the City of Rockledge is a public employer. It was agreed that the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. It was agreed that there is a sufficient showing of interest as required for the filing of a presentation election petition under Florida Statutes, Chapter 147. It was agreed that the employee Organization is a properly registered organization with the public Employees Relations Commission. The appropriate unit of public employees in the cause was in dispute. The Petitioner stated that the Association wanted to represent the dispatchers, patrolmen, sergeants, lieutenants and the detectives. The Public Employer requested that only patrolmen and detectives should make up the unit.
Findings Of Fact The Petition, styled Brevard County P.B.A, Petitioner, and City of Rockledge, Public Employer, seeks a certificate of representation as the exclusive bargaining agent for Officers of the City of Rockledge, Florida, including patrolmen, sergeants, dispatchers lieutenants and detectives. Excluded are captains and the chief of police. The city Counsel of the city of Rockledge, Florida, in the minutes dated April 2, 1975, agreed to follow guidelines under "Section 300" (8H300) of the Florida Administrative Code. See "Exhibit (1)". An envelope furnished by PERC containing authorization cards for the Brevard County P.B.A., alphabetized list of employees provided by the employers, notice of appearance forms for the attorneys, request to appear forms by the public, registration file (original) for the Brevard County P.B.A, original petition file including Petition, affidavit of registration, affidavit for 30 per cent showing interest, was circulated and without objection entered into evidence. See "Exhibit (2)". There are eighteen (18) men in the proposed bargaining unit: nine (9) patrolmen, two (2) detectives, three (3) dispatchers, three (3) lieutenants and one sergeant. A copy of the official job description of the City of Rockledge Police Department effective prior to the instigation of these proceedings was requested to be examined by both parties and submitted to the Hearing Officer and was submitted and marked as Supplement to the Record" and is made a part of this file. The major functions of personnel as delineated in the job descriptions submitted are as follows: Lieutenant: This is supervisory work in coordinating police activities on an assigned shift or specialized division of the department. The employee is responsible for the overall supervision of the subordinate personnel (patrolmen, dispatchers, etc.) engaged in police activities on an assigned shift or a specialized division. Part of the duties are to assign, direct and supervise the work of subordinate personnel engaged in routine police activities or criminal investigations. This employee reviews and makes recommendations for disciplinary action of subordinate personnel of the department. Sergeants: This is supervisory and specialized police work in the field and in police headquarters. An employee in this classification may also assume the total responsibilities as assigned to a regular shift commander. An employee in this classification may also be assigned the duty of coordinating the communication operators (dispatchers). When working as a shift commander the duties are the sane as listed for a lieutenant's duties. Patrolmen: This is general duty police work in enforcing laws and ordinances of the federal, state and local governments. Specific assignments are received from superior officers and carried out in accordance with the established rules and procedures. Personnel must be able to act without direct supervision in emergencies. Primary duties are to enforce the laws and ordinances and investigate and see whether these laws and ordinances are being violated. Detectives: The major functions of the detective is specialized police work but also includes enforcing the laws and ordinances of the federal, state and local governments. Major duties include the conducting of surveillance assignments to help detect crime and general investigative work. Communication operator or dispatcher: This is specialized work receiving, screening and dispatching messages of police communication systems. His duty largely is the operation of the radio transmitter for the purpose of dispatching patrol and detective units and receiving messages. In accordance with Chapter 447, Florida Statutes, no recommendations are submitted. August 8, 1975. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James D. Williams, Vice President Brevard County P.B.A. 978 Beacon Road Rockledge, Florida 32955 Vernon Weekly, Past President Brevard County P.B.A. 700 Sandgate Street Merritt Island, Florida 32952 Dale Dixon, President Brevard County P.B.A. 2460 North Coutenay parkway Suite 216 Merritt Island, Florida 32952 John A. Hipp, City Manager City of Rockledge Post office Box 488 Rockledge, Florida 32955 Jim Gilliard 993 Pinson Boulevard Rockledge, Florida Ronald F. Ray Post office Box 206 Rockledge, Florida Chairman Public Employees Relations Commission Suite 105 2005 Apalachee parkway Tallahassee, Florida
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
