The Issue Did Respondent, Emerald Grande, LLC (Emerald), discharge Petitioner, Shelia Demons, on account of her race in violation of chapter 760, Florida Statutes (2013)?1/
Findings Of Fact By Notice dated December 3, 2013, the hearing was originally scheduled for January 14, 2014. On January 8, 2014, Petitioner filed a request that the hearing be continued. The undersigned continued the hearing until February 4, 2014. On January 17, 2014, Respondent filed an Unopposed Motion for Continuance. The undersigned continued the hearing until March 11, 2014. On March 7, 2014, Respondent filed a Motion to Exclude Petitioner’s Undisclosed Witnesses and (Proposed) Exhibits on the grounds that Petitioner had not disclosed her witnesses and exhibits to Respondent as required by the Order of Pre-Hearing Instructions. The hearing convened as scheduled at 9:00 a.m., Central Time, on March 11, 2014. Counsel for Emerald and Emerald's representative and witnesses appeared. Emerald had previously timely provided Petitioner with its witness and exhibit lists. As of 9:16 a.m., Ms. Demons had not appeared or contacted the office of the undersigned. At 9:17 a.m., counsel for Respondent moved, ore tenus, for an order of dismissal. The undersigned informed counsel for Respondent that a written recommended order would be entered granting Respondent’s motion. Ms. Demons presented no evidence. Emerald presented no evidence. The hearing was adjourned at 9:20 a.m. When the undersigned left the hearing room at 9:30 a.m., Petitioner had still not appeared or contacted the office of the undersigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Shelia Demons. DONE AND ENTERED this 17th day of March, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 17th day of March, 2014.
Findings Of Fact John Stewart is a correctional officer with permanent status. He filed a timely appeal on his five-day suspension with the Career Service Commission. Franklin Ashe, Assistant Food Service Director, was Stewart's immediate supervisor and rater at the time in question. Stewart had transferred to kitchen duties shortly after his initial rating as a Correctional Officer I in March, 1976. Ashe prepared Stewart's first rating as a Correctional Officer I working in the kitchen as a steward on April 25, 1977. At that time Stewart had worked in the southwest unit kitchen since the and of March, 1977. His duties in the southwest unit kitchen were direction and supervision of inmate cooks and cook's helpers. Prior to his transfer, Stewart's duties were to take the noon meal to the prisoners working on work details outside the prison. However, Ashe had also supervised Stewart prior to his transfer to the southwest unit kitchen. His performance of his initial duties were presumably satisfactory because this was apparently a good assignment and Stewart performed these duties until March, 1977. The benefits of this job included no shift work and weekends off. In late March, 1977, Stewart who was active in a union organizational effort received oral warning from D. E. Carter concerning passing out union material on the premises of the prison. Shortly thereafter, Stewart who was an alternate to the bargaining talks, was moved from his duties serving prisoners on work detail and assigned to shift work. Shortly after that he was moved to the southwest unit kitchen. The evaluation involved in this case followed shortly thereafter. Ashe's evaluation of Stewart was delivered to Ashe by one of the Correctional Officers II or sergeants who were assigned duties in the kitchen. Ashe was displeased about the rating and asked the sergeant about speaking to Ashe. A meeting occurred between Ashe and Stewart in Ashe's office shortly after Stewart came to work on May 23, 1977. This meeting lasted about five minutes. Stewart states that he asked Ashe about the rating and Ashe replied that it was self-explanatory and that he just called the facts the way they were. Beyond this Ashe gave no explanation of the basis for his rating of Stewart. Ashe does not deny this, but alleges that Stewart was abusive and insubordinate by stating that he (Ashe) was full of shit. Ashe then attempted to terminate the meeting by leaving. Ashe stated that Stewart blocked his way out of the door and told him that he was a baby not a man and that if they met on the street, Ashe had better move over. Stewart denies having used vulgar or threatening language with Ashe, but admits that be did stand in the door way and did say Ashe was a baby not a man. Stewart never received an explanation of his rating. Based upon the foregoing Stewart was suspended for five days.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer finds that good cause existed for disciplinary action against Stewart. DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond Gearey, Esquire Department of Offender Rehabilitation 1311 Winewood Boulevard Tallahassee, Florida 32304 Walter Thomas, Esquire Voyager Building 2255 Phyllis Street Jacksonville, Florida Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue This case concerns the charges made by the Petitioner, City of Clearwater, Florida, against its employee Cleven Wyatt, Respondent, which lead to his termination and dismissal as an employee of that municipality. In particular, through charge one, the Respondent has been accused of violating Rule 14, Section 1(e) of the Civil Service Rules of Clearwater, Florida, by being offensive in his conduct toward a fellow employee. Through charge two, the Respondent is accused of committing a level five offense, within the meaning of the Guidelines for Disciplinary Action, City of Clearwater, Florida, in that he had an unauthorized possession of a knife on City property.
Findings Of Fact The Petitioner in this action is a City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community. Among its powers is the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831 pursuant to Chapter 21153, Special Laws of Florida, 1941. This Ordinance deals with the Career Civil Service System for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. In this instance, the Respondent, Cleven Wyatt, has been charged and dismissed from his employment within the Career Civil Service System of the City of Clearwater under the alleged authority set out in the Issues statement of this Recommended Order, pertaining to charges one and two. In association with charge one, it has further been specified that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt, during a verbal exchange between himself and Billy Harbuck, heavy equipment operator, struck Harbuck in the face with his hands and thereafter pulled a knife and threatened Harbuck physically with the knife by using the words, 'I will cut you.'" Further, the specification to charge two states that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt pulled a knife and threatened Mr. Harbuck physically by using the words, 'I will cut you.'" Having been charged with these violations and in keeping with the remedy afforded, the Respondent, pursuant to Ordinance No. 1831, Section 2-38, of the City of Clearwater, Florida, he elected to have a Hearing Officer conduct a formal hearing to determine the accuracy of those charges placed against him. In turn, the City of Clearwater forwarded the case to the Division of Administrative Hearings for consideration. This arrangement was concluded pursuant to the contract between the Division of Administrative Hearings and the City of Clearwater, to provide a Hearing Officer for proceedings of this type. See Subsection 120.65(6), Florida Statutes. On December 15, 1980, the hearing was conducted. The facts in this case reveal that on the morning of September 25, 1980, the Respondent brought his sanitation truck to the transfer station to dump the contents of that vehicle. When he arrived at the transfer station he was approached by another employee, Billy Harbuck, who stepped up to the truck and began a conversation with Wyatt, in which he accused Wyatt of stealing watermelons that were planted in the area of the transfer station. Wyatt then got out of his truck and continued to engage in this conversation which became heated and in the course of the exchange, Wyatt accused Harbuck of "making love" with Harbuck's girlfriend while in the "break-room" of the transfer station. In addition to the verbal intensity of this dispute, there had been finger pointing by both parties and when Wyatt made his remark about Harbuck's alleged amorous adventures, Harbuck struck Wyatt on the shoulder and Wyatt in turn slapped Harbuck in the face. (It was not proven that Wyatt stole the watermelons. The facts did establish that Wyatt's claim related to Harbuck's social life with his girlfriend was a false claim, in that his visit with his companion did net involve sexual intercourse.) Following the physical encounter, the combatants armed themselves. The sequence of their arming was the subject of testimony in this cause in which there was extreme diversity of opinion among the several witnesses who gave testimony. Having reviewed that testimony at length with a view toward the interest in this case held by those witnesses and in particular the combatants and the resulting effect this has had on their creditability, it is unclear which individual armed himself first. However, it is certain that shortly after the blows were struck, Harbuck grabbed a metal stool from the ground. The stool was approximately three feet high and ten inches in diameter. It was also shown that Wyatt took a knife from his pocket and opened it and brandished the knife in the direction of Harbuck. At the time the Respondent and Harbuck took up their weapons, another employee, James Cheatum, stepped between them and grabbed the stool which Harbuck held in his hands and pushed Wyatt away from the affray. When he looked from Harbuck to the direction of Wyatt, he saw the knife in Wyatt's hand. Harbuck being unable to further pursue this circumstance by using the stool, he then grabbed a shovel which was in his vicinity, but was again unable to take further action because he was restrained by Cheatum and a second employee, Grover Wilson. At the time that Harbuck was attempting to pick up the shovel, Respondent still had his knife drawn. Both of the combatants expressed malice through their demeanor at the point where they were armed with the knife, stool and shovel, and both combatants were in fear of their opponent at that juncture. Neither individual attempted to strike the other individual with a weapon. Furthermore, the knife which the Respondent had possession was not a knife which he carried with him as a matter of course. It was a knife given to him by an employee of the City of Clearwater to make repairs on the Respondent's sanitation truck. After that aspect of the circumstance involving the shovel had occurred, the fight ended and at the insistence of the supervisor at the transfer station, the Respondent departed the area. He was later charged with the alleged acts of misconduct.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue : The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination from employment for purportedly making complaints concerning alleged discriminatory practices toward Hispanic employees.
Findings Of Fact The Petitioner was hired by the Escambia County Health Department (Department) the Respondent herein, as a Community Health Nursing Supervisor. It was the Petitioner's duty to supervise nursing staff under her direction and to perform their employee evaluations. She, in turn, was responsible to her supervisor, Jennifer Carter. The Petitioner maintains that she was retaliated against by the Respondent, in the employment action taken, because she complained to her supervisors concerning what she claimed was discriminatory conduct toward Hispanic employees by other employees of the Respondent. The Petitioner, for instance, made reference to an employee, Annette Thrasher, who purportedly made reference to "those people" in a meeting when referring to Hispanic people or employees. The Petitioner, however, did not make a formal complaint about that matter when offered the opportunity to do so. Maribel Reyes is a Hispanic employee. She testified that another employee, possibly employee Thrasher, criticized her as well as Esperanza Rietz, also a Hispanic employee, for speaking the Spanish language at work. Ms. Reyes and/or Ms. Rietz took a complaint about this matter to the Petitioner. The Petitioner did not act to resolve it, however, and therefore Ms. Reitz took her concerns about criticism of her speaking in Spanish to the Petitioner's supervisor, Ms. Carter. The issue was then resolved quickly by Ms. Carter, who assured Ms. Rietz that she could speak any language she wished; that there was no prohibition against that. The Respondent had contended that this was one of the instances of purported discrimination against Hispanic employees which she purportedly defended against and made complaint about to the Respondent's management. In fact, the complaint had been made to her by the Hispanic employee referenced above and she had done nothing about it. In any event, the fact that the Petitioner's supervisor, Ms. Carter, acted quickly to assure Ms. Reyes and indeed Ms. Rietz, that the Respondent's management did not tolerate employment conduct indicative of such discrimination, tends to belie the Petitioner's contention that the Respondent retaliated against her for making a complaint about discrimination against Hispanic employees. Rather, it was her supervisor, and the Respondent's management who acted to ensure that such potentially discriminatory conduct was not condoned. This belies any likelihood that the Respondent would have retaliated against the Petitioner for following the same policy, had she done so. When she was hired the Petitioner's supervisor, Ms. Carter, instructed her to include Ms. Carter in any meetings and/or discussions with employees concerning those employees' performance evaluations, especially if the evaluations were contemplated to be negative ones. The Petitioner was still a probationary employee herself, and Ms. Carter, as her supervisor wanted to ascertain that she had followed instructions and was doing the employee performance evaluations in accordance with the Respondent's relevant personnel rules and policies. In fact, however, the Petitioner failed to follow Ms. Carter's instructions and completed a number of performance evaluations and meetings with the affected employees without informing Ms. Carter or securing her presence at those discussions. The testimony of witnesses Jessie Wilson and Jennifer Carter, established that the Petitioner gave Jessie Wilson an unfair and inaccurate employee performance evaluation. She excessively criticized and was rude toward Jessie Wilson. The Petitioner apparently made a comment somewhat to the effect that Ms. Wilson, who is white, had a "Jim Crow" attitude or an "overseer" mentality. The Petitioner was overly critical, demeaning, and rude toward employees at various times. She embarrassed and criticized Esperanza Rietz, an employee she supervised, in front of the employee's co-workers and disclosed her personal medical information improperly to Ms. Rietz's co-workers. Velda Gardner is a Health Technician in the health unit. Ms. Gardner took a long lunch period one day, taking an extra hour. She took the extra hour from administrative leave she was entitled to as "compensation time." The Petitioner wrongfully docked her the hour of administrative leave time. Ms. Gardner demonstrated to the Petitioner, with a witness, that she was entitled to the hour of administrative leave time or compensation time but the Petitioner refused to accept her truthful explanation. She effectively and wrongfully accused Ms. Gardner of lying. In addition to prompting employee Jessie Wilson to file a grievance against the Petitioner because of the untrue, inaccurate, and overly disparaging evaluation concerning Ms. Wilson's performance, the Petitioner yelled at and criticized Ms. Wilson in front of her peers. She also treated other employees in front of peers in a similar fashion at various times. Ms. Rietz worked as a Spanish language interpreter for the Respondent. The Petitioner disparaged her in front of other employees. Ms. Rietz felt demeaned by this. On another occasion the Petitioner approached a physician, Dr. Tamalo, in the hallway outside her office and commenced yelling at him and berating him in a loud, rude manner. This was overheard by witnesses Virginia Howard and Gracie Stovall, employed, respectively, in the nearby Family Planning Clinic and Family Health Clinic. According to these two witnesses, "everyone in adjoining rooms could hear it." The Petitioner behaved in a very loud, rude disparaging way to Dr. Tamalo and another physician. Jennifer Carter, as referenced above, is employed by the Family Health Clinic and is the Petitioner's supervisor. She corroborated the testimony of witness Jessie Wilson concerning the Petitioner's "Jim Crow" reference and described the above-named witnesses' and employees' complaints concerning the Petitioner's conduct towards them, corroborating the nature of their complaints. Witness Carter described Respondent's Exhibit A, which is Jessie Wilson's performance evaluation, as being in some respect harsh and demeaning, with the same sort of criticisms directed at the Respondent's Exhibit B, the performance evaluation of Tammy Buckney. These evaluations were not done in accordance with Ms. Carter's instruction. Ms. Carter, in fact, had to re-formulate and re-draft three of the six employee evaluations she received from the Petitioner because they were inaccurate, overly disparaging, and not done according to her instructions. Ms. Carter is the Assistant Community Health Nurse of the Escambia County Health Department. Ms. Carter thus corroborated the testimony of other employees that the Petitioner's treatment of staff members under her supervision was frequently rude and demeaning. Ms. Carter also corroborated the testimony of Ms. Reyes in establishing that no discrimination against Hispanic people was tolerated by the Respondent, nor to the knowledge of Ms. Carter had occurred. Dr. John Lanza is director of the Escambia County Health Department. He is the ultimate supervisor of the Petitioner as well as all other employees of the Department, including Jennifer Carter. Dr. Lanza has been with the Department of Health for 15 years. He has never heard any reports of discrimination against Hispanics or as to Ms. Rubin herself. Ms. Rubin is Black. Dr. Lanza became aware through reports of his management team, such as Dr. Susan Turner, Barbara McCullough, and Jennifer Carter of the Petitioner's disparaging, and rude treatment of employees under her supervision. He also learned that she failed to participate in her clinic duties. Dr. Lanza, as director of the health department, is authorized to dismiss Department personnel. He dismissed the Petitioner because she failed to follow her supervisor's instructions, was unacceptably rude and overly critical of employees under her supervision. She was demeaning at times toward employees and even was rude to two physicians at the Department whom she had no authority to supervise. These criticisms, which have been established as true by the preponderant evidence in this record, and the fact that all this deficient conduct occurred while the Petitioner was still in her probationary period after her hiring, motivated Dr. Lanza to dismiss the Petitioner from employment. When Dr. Lanza made this decision he was unaware of any allegation of any discrimination directed toward Hispanic employees anywhere in the Escambia County Health Department. Because he was unaware of such allegations of discrimination, akin to that complained of in the Petition for Relief, he could not have retaliated against the Petitioner for taking a stand or making complaints about alleged discriminatory conduct directed toward Hispanic employees.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2008. COPIES FURNISHED: Edna M. Rubin 1140 East Baars Street Pensacola, Florida 32503 Rodney M. Johnson, Esquire Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 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 The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race and gender.
Findings Of Fact Respondent is an employer as defined under the Florida Civil Rights Act of 1992. See § 760.02(7), Fla. Stat. Petitioner is a black female. She was hired as a part- time server in Respondent's dining room. She began working in the dining room on December 8, 2001. Her employment was terminated on September 25, 2003. During the time that Petitioner worked in Respondent's dining room, her initial employer was Emeritus Corporation. Subsequently, Petitioner worked for Love Management Company. Petitioner had at least six disciplinary "write-ups" in her disciplinary file at the time of her termination. Clara Poole, a black female, was Petitioner's initial supervisor. Subsequently, Randy O'Brien, a white male, became Petitioner's supervisor. On or about February 2, 2002, Ms. Poole disciplined Petitioner for not completing her daily assignment as the dishwasher. Ms. Poole suspended Petitioner for three days. Petitioner was advised in writing that she had to follow the instructions of her supervisor. From the time that Mr. O'Brien began supervising Petitioner, it was obvious that he and Petitioner had a personality conflict. Mr. O'Brien's management style was very different from the one practiced by Ms. Poole. Mr. O'Brien was abrupt, demanding, and intolerant of any staff member's failure to follow his instructions. However, Petitioner, unlike other staff members, took exceptional personal offense to Mr. O'Brien's negative comments and criticisms. As time went on, Petitioner's relationship with Mr. O'Brien deteriorated to the point that Petitioner frequently complained to Respondent's management about Mr. O'Brien's conduct. There is no persuasive evidence that Respondent's management failed to take Petitioner's complaints seriously and make the appropriate inquiries. Respondent's management counseled Petitioner and Mr. O'Brien, encouraging them to work together in a professional manner. On or about July 24, 2002, Mr. O'Brien disciplined Petitioner for becoming involved in a confrontation with one of Respondent's residents. Petitioner was advised of the need to always be courteous to residents and to call a manager to resolve any conflicts. On or about September 23, 2002, Petitioner was in an automobile accident. The next day, September 24, 2002, Petitioner's husband provided Respondent with a doctor's excuse for her to miss one day of work. Petitioner's husband told Mr. O'Brien that Petitioner would not return to work for one week. Mr. O'Brien informed Petitioner's husband that Petitioner would need another doctor's note to be off from work for more than one day. There is no credible evidence that Petitioner's doctor extended the time she could miss work after the automobile accident. Because Mr. O'Brien did not receive another doctor's excuse, he scheduled Petitioner for work on September 25, 2002, and September 30, 2002. Petitioner did not call or show up for work on either occasion. On September 30, 2002, and October 1, 2002, Mr. O'Brien placed "write-ups" in Petitioner's disciplinary file for violating Respondent "no call, no show" policy. There is no evidence that Respondent took any other disciplinary action against Petitioner for failing to call or show up for work on September 25 and 30, 2002. On or about October 31, 2002, Petitioner complained to Respondent's office manager that her time card was not correct. When Mr. O'Brien questioned Petitioner about her concern, she exhibited a poor attitude. Mr. O'Brien placed a written report in Petitioner's disciplinary file and warned her that she would be terminated unless she changed her attitude. On or about June 13, 2003, Respondent's management counseled with Petitioner and Mr. O'Brien. During the counseling session, Mr. O'Brien apologized for not turning in Petitioner's vacation time. Mr. O'Brien also explained the duties of the night shift and the difficulty he had in scheduling work for the dining room. At the conclusion of the meeting, Petitioner and Mr. O'Brien agreed to try to show more respect for each other. Mr. O'Brien agreed that he would try to give Petitioner at least one weekend off each month. On or about July 2, 2003, Respondent's management counseled with Petitioner because she had not responded in a professional manner when the cook, Ron Heffer, questioned whether Petitioner had taken food home after her evening shift. After this meeting, Respondent established a policy that kitchen staff could eat a meal at the facility but not take any food home. On July 4, 2003, Mr. O'Brien advised Respondent's management that he would inspect bags or items being carried home by kitchen or dining room staff when the bags or items did not reveal the contents. There is no credible evidence that Mr. O'Brien singled Petitioner out in making these inspections. On or about July 7, 2003, Mr. O'Brien placed a "write- up" in Petitioner's disciplinary file. According to the document, Petitioner's team leader complained that Petitioner was not completing her work. On or about July 7, 2003, Mr. O'Brien approached all members of the food-service staff to check the contents in to-go boxes and other bags. Petitioner became upset when Mr. O'Brien attempted to check Petitioner's bag. Petitioner eventually complied with Mr. O'Brien's request, revealing some food, which she disposed of, and other items that did not come from Respondent's kitchen. On several occasions from July 11, 2003, through July 17, 2003, Respondent's manager received complaints from Mr. O'Brien and Petitioner's co-workers about Petitioner's attitude and her failure to perform daily tasks. The manager counseled with Petitioner who took the position that everyone else was lying and that she had done nothing wrong. On or about July 18, 2003, Respondent gave Petitioner a written warning that she would be suspended or terminated if her attitude and performance did not improve. Specifically, Petitioner was advised that she had to clean after serving dinner and refrain from complaining when she was instructed to perform a task. On or about August 2, 2003, Mr. O'Brien noticed that Petitioner was not wearing an apron. He requested another staff member to find out why Petitioner was not in proper attire. Petitioner informed the co-worker that her apron was in the laundry. Subsequently, Petitioner was rude to Mr. O'Brien when he stated, "We are not responsible for washing employees' laundry." On or about September 8, 2003, Petitioner and Mr. O'Brien engaged in a heated conversation about her duties. The argument was initiated by Petitioner and involved her objection to being told that she had to vacuum. Petitioner spoke to Mr. O'Brien in a loud, aggressive tone in front of a resident, potential customers, and other employees. On or about September 14, 2003, Ron Heffer, the cook, was acting in a supervisory capacity. He filed a written report alleging that Petitioner had disappeared for 45 minutes while on the clock and that she had not followed her team leader's cleaning instructions. On or about September 15, 2003, Respondent's manager counseled with Petitioner regarding her failure to improve her performance. Petitioner once again became overly defensive. On September 25, 2003, Petitioner was preparing garnish for lunch. Mr. O'Brien told Petitioner to put on gloves. Petitioner was terminated for not following instructions and continuing to work without putting on gloves, for being insubordinate, for not improving in job performance or attitude. At the same time, Alex Barth, a white male, was also reprimanded for not wearing gloves while handling food. Respondent did not fire Mr. Barth because he had only been on the job for about two weeks. Petitioner had worked at the facility for almost two years. One cannot say that Petitioner and Mr. Barth were similarly situated based on the difference in training and work experience and the difference in the number of prior disciplinary actions. During the hearing, Petitioner testified at length about Mr. O'Brien's unfair treatment. The record indicates that Mr. O'Brien was a bully at times. Many employees found it difficult to work for him. However, there is no persuasive evidence that Mr. O'Brien singled Petitioner out or treated her differently from the way he treated other similarly situated employees. At various times, Mr. O'Brien coarsely reprimanded and/or "wrote-up" other employees. These employees included at least one white female and two white males. On the other hand, Mr. O'Brien had a respectful working relationship with at least two black females. Mr. O'Brien promoted one of them to be a team leader, a supervisory position. There is evidence that Petitioner was overly sensitive to Mr. O'Brien's abrupt management style. Other employees either did as they were told without complaint or stood up to him, resolving daily problems yet maintaining a professional relationship. Petitioner was moody and difficult to train in the standard procedures for all dining room servers. She did not like anyone telling her what to do. As a result of Petitioner's attitude, she had difficulty getting along with most of her peers and supervisors. It was Petitioner's disciplinary history, and not Respondent's discriminatory animus, that resulted in her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief. DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2005. COPIES FURNISHED: 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 Jacqueline Adams 3842 Bell Road Tallahassee, Florida 32303 Thomas A. David, Esquire Cooper, Byrne, Blue & Schwartz, PLLC 3520 Thomasville Road, Suite 200 Tallahassee, Florida 32309
Findings Of Fact On October 18, 1971, the Respondent through ordinance Number 201 (Respondent's Exhibit 1) established a civil service system. The ordinance in pertinent part provided that the civil service board shall "adopt, enact and amend a code of rules and regulations for each department covering, among other things, duties, hours of work, discipline and control, rules and regulations for appointment, employment, suspension and discharge of employees based on merit, efficiency, character and industry." Evidence reveals that the Civil Service Board took no action to "adopt, enact or amend a code" pursuant to Section 5 of ordinance Number 201 and, until the unilateral acts here complained of, Respondent had little in the way of written rules and regulations. However, within the Police Department there were "general rules of conduct" which had been promulgated by the Police Chief. (See G C Exhibit 8). Thereafter, the City Attorney drafted an ordinance amending ordinance Number 201 (see Respondent's Exhibit 8). Police Department representatives attended a meeting with the Mayor on June 15, 1975, for the purpose of discussing the proposed amendment to ordinance Number 201. After the meeting, George Slinkman, then President of the FOP, learned of its purpose and was given a rough draft of the proposed amendment. He was informed that the departmental representative had voiced objections to the Mayor concerning the amendment and on July 31, 1975, the proposed amendment came before the City Council at a workshop meeting. Present at that meeting was the President of the FOP who informed the council that the FOP was in favor of implementation of the original ordinance Number 201 rather than the proposed amendment to which the FOP objected. President Slinkman indicated that if the Respondent was proceeding with the new amendment as proposed, the FOP would like to provide some input into the proposal. No further action on the proposed amendment was taken by the City Council at that meeting nor did it appear on subsequent council agendas. On December 15, 1975, PERC certified the Charging Party as the exclusive bargaining representative of Lauderhill Police Department Employees in the following unit. INCLUDED: Police Detectives, Officers and Sergeants. EXCLUDED: Police Lieutenants, Captains and the Chief. (See G.C. Ex. 7). Approximately two weeks later, the City Service Rules and Regulations, first part, through implementing resolution Number 511 (G.C. Ex.2) was presented to the City Council by the Mayor as an implementation of Civil Service Ordinance Number 201. The rules contained therein governed personnel recruitment and examinations for positions within the City. The Mayor informed the Council that there had been no employee input on such rules. While members of the Council received their copies approximately five days prior to the December 30th Council meeting, they were informed at the meeting that copies had not otherwise been distributed. City resolution no. 511 was passed by the City Council at the December 30, 1975, meeting and became effective immediately. Apart from the fact that witnesses George Slinkman, the former President of the FOP and President Elect Ralph Dean testified that Respondent failed to request input from the FOP on the rules as adopted, they also testified that no agent of the Fraternal Order of Police was made aware of the existence of the newly passed resolution until several days thereafter. (TR.401-402, 420-422). On or about April 22, 1976, Richard Witt, FOP State President, wrote to Mayor Cipolloni advising that he had been asked to represent the Charging Party in collective bargaining negotiations with the Respondent. Witt requested a meeting with the Mayor for the purpose of discussing negotiations. In response, the Mayor suggested the parties meet during the morning of April 28, in the Mayor's office. On Tuesday night, April 27, the Mayor introduced the City Service Rules and Regulations, second part, along with implementing resolution Number 571 to the City Council. This document contained numerous proposed changes in terms and conditions of bargaining unit employees including changes in appointments, lay-offs re-employment, evaluations, physical and mental exams, weight regulations, hours of work, vacations, holidays, sick leave, suspensions, demotions and grievance procedures. The Council was informed that employees had not provided input on the rules although the Mayor expressed his understanding gained from a recently attended labor relations seminar that Respondent needed a base for forthcoming negotiations with the Charging Party. When it was learned that the Civil Service Board had not been consulted with regard to the document, the resolution was tabled and Civil Service Board members were invited to be present the following evening when it would be brought up again, Richard Witt, the Mayor, and Police Chief Ramsdell met as scheduled on the morning of April 28, 1976. Witt requested that prior to collective bargaining the City furnish him with budget documents and other materials pertaining to police officers' health program, welfare and other employment working conditions. The Mayor responded, according to Witt, that it would take some time for him to assemble such but that the information would be forthcoming. That night, the City Council passed resolution no. 571, which adopted the City Service Rules and 7Regulations, save the sick leave policies which became effective January 1, 1977. (See G.C. Ex. 6). Ralph Dean, the President of the Charging Party testified that Respondent was not requesting input from the FOP on the rules and regulations, second part, nor had FOP representatives been furnished copies of the documents prior to their adoption. Additionally, he testified that the Charging Party was not notified of the pending adoption of the document and did not obtain a copy of such until after passage on April 28, 1976. Corroborative testimony on this point was given by Councilwoman Hatcher and employees Dean and Slinkman. The parties' first negotiation session was held on May 22, 1976 and at that time the Charging Party advised the Mayor and the City Attorney that in their opinion, some of their proposals were in violation of existing City ordinances, including the rules and regulations first and second parts. Two days thereafter, on May 24, 1976, the Charging Party filed with the Commission the instant unfair labor practice charges. The parties were again scheduled to meet on May 28, 1976. Upon receipt of the unfair labor charges, the City Council met with the Mayor in "executive session" and it was then decided that Respondent would "suspend bargaining" until the charges were disposed of. The Mayor arrived at the May 28th session and informed the Charging Party that Respondent would not return to the bargaining table until the pending charges had been resolved. A second charge was filed against the Respondent alleging essentially that the Respondent's suspension of bargaining constitutes a refusal to bargain in good faith within the meaning of Section 447.501(a)(c) of the Act. The evidence also reveals that on approximately March 30, 1976, the Respondent adopted a pay plan for its police department employees who are in the bargaining unit in which the Charging Party was certified to represent. The pay plan, as adopted, represented a reduction in the existing pay plan. In adopting this plan, Frank C. Brown Associates, a management consulting firm, was commissioned to conduct a study to devise a pay plan for all city employees. The evidence reveals that the wage and job classification plan prepared by Frank C. Brown and Associates was not compiled based on any joint efforts by the Charging Party who had been certified to exclusively represent the police unit employees. Specifically, Ralph Dean objected to the new pay plan and in fact, Mayor Cipolloni testified that he gave no direction to Frank C. Brown and Associates to seek any input from the Charging Party and/or its agents. Based on the Charging Party's objections to the pay plan as submitted by Frank C. Brown on February 9, 1976, one pay grade was added to each of the ranks. The plan was submitted to the City Council on March 30, 1976 and was made effective immediately for all employees. Representatives of the Charging Party were present at this meeting and objected to the implementation thereof to no avail. Thereafter, and during the second negotiation session on May 28, 1976, the Respondent suspended negotiations with the Charging Party based on the fact that the Charging Party had filed unfair labor practice charges with the Commission.
Conclusions The essence of the collective bargaining relationship between public employers and its employees in the State of Florida is outlined in Chapter 447.309(1), Florida Statutes (1975). The dictates there mandates a bilateral decision making process which becomes effective after an employee organization has been certified by the Commission. At that juncture, the public employer is no longer free to make unilateral determinations with respect to items which are considered "wages, hours, and terms and conditions of employment". See for example District School Board of Hillsborough County and Hillsborough C.T.A., PERC order no. 76U-1181 (October 4, 1976). The Charging Party and/or its agents objected to the City Service Rules and Regulations first and second parts each time they were brought up before the Council. Respondent at no time requested any input from the Charging Party's agents respecting its position in fulfilling its obligation to represent the unit employees it was certified to represent. The Respondent's affirmative defense that the Charging Party's members were advised and participated in the enactment of the City Service Rules and Regulations and the pay scale as it relates to unit employees was considered. However, when an examination of the positive duty placed on the Respondent as it relates to its duty to bargain with the certified representative, such a position fails to withstand scrutiny and amounts to conduct representing an abrogation of its duty to meet with and confer with the designated certified representative. Absent an impasse, necessity or an express or implied waiver (all of which are absent here), the employer was expressly obligated to refrain from taking the unilateral action which it took on December 30, 1975, on March 30, 1976 and on May 28, 1976. Under these circumstances, and in the absence of any evidence which would permit the employer to unilaterally act as stated above, the conclusion is inescapable that the Respondent consciously abrogated its duty as set forth in Chapter 447.309(1), F.S., and engaged in conduct violative of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to post at its facilities, in conspicuous places, on forms to be provided by the Commission, a notice substantially providing: that it will bargain collectively, upon request, with the Charging Party as the exclusive bargaining representative of the unit employees as stated above; that it will not make unilateral changes in wages, hours, and other terms and conditions of employment of said employees and that it will not suspend bargaining or fail to meet and bargain collectively with the exclusive bargaining representative unless directed to do so by the Commission. RECOMMENDED this 27th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Irving Weinsoff, Esquire Suite 804, Roberts Building 28 West Flagler Street Miami, Florida 33130 Bruce A. Leinback, Staff Attorney for William E. Powers, Jr., General Counsel 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esquire 6299 West Sunrise Boulevard Suite 205 Sunrise, Florida 33313
The Issue Two issues were involved in this case: Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race when it failed to promote him to the position of lead man in the Respondent's Public Works Department. Whether the Respondent unlawfully retaliated against the Petitioner by giving him written reprimands and unsatisfactory scores on job performance evaluations because of the fact that he filed an administrative charge of racial discrimination against the Respondent.
Findings Of Fact Petitioner is a black male approximately 35 years of age. Prior to returning to Florida, Nunn had worked all over the United States, to include Alaska, as a construction worker. Respondent is an incorporated city in Florida. The Petitioner was hired in 1988 as a temporary employee in the Respondent's Water and Sewer Department by Dennis Monroe, Director of Public Works. While he was a temporary employee, the Petitioner indicated to Mr. Monroe, that he wished to remain in the Respondent's employ. On October 1988 the Petitioner was hired in a full time position as a Laborer I, and began a 6 months probation period. At the conclusion of the Petitioner's initial six-month probationary period (in April 1989), he received a above satisfactory score on an Employee Performance Evaluation completed by Mr. Monroe (Respondent's Exhibit A). Mr. Monroe at that time promoted the Petitioner to the position of Laborer II. At about this time, the water department lost three of its senior employees, and Nunn was suddenly the most senior person in the water department. Nunn talked with Moore about a promotion, but Moore hired Mr. Edwin Krusemark, a while male, who had been a consultant on the city's system, to run the water and sewer department. Sometime after the completion of his probationary period in April 1989, the Petitioner asked Edwin Krusemark, Public Works Superintendent, for an additional helper to complete his job duties. Mr. Krusemark turned down this request, although two persons had been performing the duties now performed by Nunn. Mr. Krusemark stated it was his opinion that two men were not needed to do Nunn's job, although it had previously taken two men to do it. Nevertheless, both Monroe and Krusemark verbally complained to Nunn about his delays. Neither manager formally reprimanded the Petitioner or placed any documentation of the Petitioner's faults in the Petitioner's personnel file prior to September 27, 1989. Neither supervisor indicated to Nunn that his work was substandard and unacceptable prior to September 27, 1989. Nunn stayed in the water and sewer department, and learned a short time later that a new lead man position was free. He applied and was rejected again without an interview. The promotion went to a new employee, William Threet, who was a white male with no experience in public utilities. Mr. Krusemark recommended to Mr. Monroe not to promote Nunn because of his lack of supervisory experience. There was no evidence presented by Respondent that Mr. Krusemark knew anything about Nunn's experience, except at the City. Mr. Krusemark admitted his recommendation was based upon his observations of Nunn at Belleview. William Threet was hired as the lead man in September 1989, based in large part upon his 19 years of experience in construction and his experience in supervisory positions (Respondent's Exhibit C) outside of government. Nunn had to help Threet learn about the water and sewer functions after Threet was hired. Shortly before September 25, 1989, the Petitioner filed an administrative charge with the Florida Commission on Human Relations, alleging that he was refused the position of lead man because of his race. The Respondent learned of Nunn's charges on or about September 25, 1989, when the Petitioner gave a copy of the charge to the Respondent's Clerk. Nunn's file on or about September 25, 1989 contained no adverse personnel comments or actions. On September 27, 1989, Nunn received a letter of reprimand for not being available when he was "on call" for emergencies. When Nunn was rated in November 1989, an entire list of deficiencies had been retroactively placed in Nunn's file. These notes memorialized trivial complaints made earlier by Moore and Krusemark to Nunn about the cleanliness of Nunn's truck, and the quality and speed of Nunn's work. However, no appropriate warnings or corrective action had been taken contemporaneously with the incidents about which Monroe and Krusemark complained, except the letter of reprimand. On November 1989, the Petitioner received an unsatisfactory score on this evaluation which had been due in October. Nunn and was placed upon a 90- day probationary period for the purpose of notifying him of his performance deficiencies and allowing him time in which to remedy those deficiencies and improve his job performance (Respondent's Exhibits E and F). Subsequent to the November 1989 evaluation, several handwritten notes from Mr. Monroe and Mr. Krusemark regarding deficiencies in the Petitioner's job performance were placed in his personnel file (Respondent's Exhibits G, H, I, and J). There were no such handwritten documentation in Nunn's file to justify or substantiate the considerable list of "comments" attached to Nunn's November 1989 evaluation. The written reprimand and the November evaluation were in retaliation for Nunn filing the discrimination complaint about Threet's hiring. These were pretexual. In January 1990, the Petitioner filed another administrative charge, alleging that the September 27, 1989 reprimand, the November 1989 evaluation, and the subsequent handwritten notes had been issued to him in retaliation for having filed the original charge of discrimination against the Respondent. In March 1990, the Petitioner received another Employee Performance Evaluation, this one being a collaborative effort among Mr. Monroe, Mr. Krusemark, and Mr. Threet. The Petitioner's score on this evaluation had improved over that of the November 1989 evaluation, but it was still unsatisfactory (Respondent's Exhibit K). Rather than discharge the Petitioner, which the Respondent could have done at that point, the Respondent placed the Petitioner on a six-month probationary status (Respondent's Exhibit L). Shortly thereafter, the Petitioner requested and was granted a leave of absence to be with his son who had to undergo a heart transplant. The terms of this leave were ill defined because it was leave without pay. After an absence of approximately two months, the Petitioner reported to work one morning in June 1990. Because of the Petitioner's extended absence from his job, the Respondent had employed another individual to perform the duties previously performed by the Petitioner. On the day that the Petitioner returned to work, this individual was sent out to perform Nunn's regular duties, while Mr. Threet contacted Mr. Monroe to inform him that the Petitioner had returned to work. Nunn was instructed to replace a faucet and then report to Mr. Monroe's office downtown. Nunn asked why he was being asked to go to Monroe's office. Nunn could not obtain a complete answer as to why. Nunn replaced the faucet, but declined to go downtown to Monroe's office because he felt he was being pushed out and Nunn was afraid he would be victimized if he went down town to Monroe's office. He rejected Mr. Monroe's request to report to Monroe's office when Mr. Monroe would not clarify the need for the visit. At that point, the Petitioner submitted his voluntary resignation from employment. After leaving Belleview's employment, the Petitioner was unemployed for four months and received no employment benefits. He was then employed by Marion County Country Club for $4.75/hour for six months. He then found his current job where he makes $6.00, the same salary he made with Belleview.
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 GRANTING in part the Petition for Relief, and awarding the Petitioner $5,380.00. DONE and ENTERED in Tallahassee, Leon County, Florida, this 7th day of November, 1991. STEPHEN F. DEAN 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 7th DAY OF NOVEMBER, 1991. COPIES FURNISHED: Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Reginal Nunn 1010 100th 467 Belleview, Florida 32620 Kenneth A. Knox, Esquire Fisher & Phillips Suite 2310 One Financial Plaza Fort Lauderdale, Florida 33394
