The Issue Whether Petitioner, following his conviction for driving under the influence of alcohol, was properly terminated from his employment by Respondent on January 29, 1999,. Whether Petitioner's termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case.
Findings Of Fact Brevard Community College, Respondent, is a body politic operating as a political subdivision of the State of Florida and authorized as a public employer to employ personnel and otherwise carry out the mission of the college as prescribed by the Legislature. Brevard Community College participates in the State Retirement Program as a public employer, but Brevard Community College is not involved in the State Career Service System. Respondent approves each non-instructional employee's continued employment for the next fiscal year each June, which includes an annual salary and a daily rate of pay. The employment approval provides that should the employee not remain employed through the entire year, the employee's pay is to be adjusted based on the number of days actually worked. Lloyd Creel, Petitioner, was a full-time employee of Respondent beginning December 17, 1979, and his employment was renewed annually until his termination. Petitioner had been a full-time employee of the college for a period of approximately 19 years prior to his termination, advancing to the position of maintenance supervisor. Petitioner's evaluations were consistently satisfactory and above-average during his employment. Creel was never warned, demoted, placed on a probationary status, or given any other disciplinary action whatsoever during his employment by Respondent. Operating under Chapter 240, Florida Statutes, and based on the recommendation of the District president of the college, the District Board of Trustees of the Brevard Community College approved Petitioner's continued employment for the fiscal year ending June 30, 1999. Petitioner was notified of his employment approval in June 1998. Petitioner's rate of pay was $38,700.00 for the 1998- 1999 fiscal year, at Step No. 257 for an annualized salary for a period of 261 days. The daily rate of pay was $148.28. During his employment with the college, Petitioner accumulated approximately $26,000.00 in sick leave. Florida law provides sick leave is compensable only in the event of death or retirement from the college. On or about October 13, 1998, Petitioner was arrested and charged with Driving Under the Influence of Alcohol (DUI), after hours in his private vehicle. This matter was brought to the attention of officials at Brevard Community College soon thereafter. After Petitioner was charged with DUI, he discontinued utilizing a college vehicle on the job and used his own vehicle. Petitioner continued to perform his responsibilities as maintenance supervisor. These included scheduling work, ordering supplies, occasionally viewing work completed by his subordinates on the job site, and attending meetings. Petitioner's subordinates performed their responsibilities without his direct supervision most of the time. Petitioner had a temporary permit which allowed him to drive through December 1998. Thereafter, the permit expired. After Petitioner's driver's permit expired, he had his roommate take him to work and provide his transportation whenever necessary. Occasionally, when he was required to attend a meeting on another campus, he sought and received rides with other Brevard Community College employees. On January 13, 1999, Petitioner pled no contest to the charge of driving under the influence of alcohol before the County Court of Brevard County, Florida. The Court adjudicated Petitioner guilty of the charge and sentenced him, inter alia, to six months driver's license suspension. Petitioner was eligible to obtain a business purpose driver's license in March 1999. Petitioner continued to perform his job functions until January 29, 1999, when he was terminated by letter from Robert E. Lawton, Associate Vice President for Human Resources. Petitioner protested his termination by writing a letter dated February 9, 1999. He questioned both his termination and the denial of payment for his sick leave. Following the termination of Petitioner, Respondent immediately employed the services of a replacement for the position of maintenance supervisor. That replacement continues to serve and be employed by the college. Counsel for Respondent communicated to counsel for Petitioner in writing that the college was willing to submit this dispute to a hearing before an Administrative Law Judge of the Division of Administrative Hearings. Petitioner was given notice of his rights by the college, together with a summary of the factual and legal policy grounds for his termination on or about May 21, 1999. On or about June 15, 1999, Petitioner filed a Petition for Relief from the employment decision rendered herein. The employment of Petitioner as an air-conditioning and electrical maintenance supervisor required Petitioner to transport himself on a regular and periodic basis among the four campuses of Brevard Community College located in Titusville, Cocoa, Melbourne, and Palm Bay, respectively. The nature of the employment of Petitioner was such that he was required to have a driver's license in order to perform his job properly. The suspension of Petitioner's driver's license, as a result of his conviction for driving under the influence of alcohol, effectively prevented Respondent from performing his job as maintenance supervisor in that he was not able to travel between the college campuses which span a distance of approximately 50 miles in Brevard County, Florida. At that time, there did not exist a lateral position at the college to which Petitioner could be transferred pending the restoration of his driving privileges. A number of college employees, numbering at least three in the recent past, received DUI convictions and have had their licenses suspended. However, they did not suffer a loss of employment as did Petitioner. The following individuals were convicted of DUI during their employment with Brevard Community College. Robert A. Anderson was convicted of DUI on December 9, 1994, while he was Associate Vice President of Student Services, College-Wide. He was not terminated, demoted, or otherwise disciplined as a result of his DUI conviction. Wayne Wilkening was convicted of DUI on November 6, 1995, March 4, 1996, August 19, 1997, and on August 21, 1997, was convicted of violating his probation. Prior to these convictions, Wilkening's driver's license was revoked for ten years. Wilkening's employment, as a groundskeeper, continued until September 7, 1999. Jay Matheny was convicted of DUI on March 15, 1995, while he was employed by the college as mail courier. He was transferred after his conviction to a position as Groundskeeper I, where he is still employed today. Respondent does not have a policy which requires termination in the event of a conviction of DUI and loss of driving privileges. Likewise, the college does not have a policy which requires an employee who is convicted of DUI and who loses driving privileges to be retained or laterally transferred and continued in employment at the college. Petitioner was terminated because he lost his driver's license for a period of six months, and was unable to satisfactorily perform his job. Petitioner contends that he could have performed his job using a surrogate driver to transport him from campus to campus. He further argues that termination was too severe and was inconsistent with past practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District Board of Trustees of Brevard Community College enter a final order, as follows: The Brevard Community College Board of Trustees is lawfully entitled to terminate Petitioner, Lloyd Creel, under the facts and circumstances of this case; however, the appropriate disciplinary action under the facts and circumstances of this case is suspension without pay for the period January 13, 1999, until the time Petitioner obtained a business purpose driver's license. Petitioner was a non-instructional employee of the college and the Board of Trustees had approved his employment for the fiscal year 1998/1999 and no rule, statute or policy gave Petitioner the expectancy of continued employment beyond the fiscal year ending June 30, 1999. Petitioner should be compensated at the daily rate of pay of $148.28 for the period March through June 30, 1999. Petitioner should be compensated for his accrued sick leave for his period of employment. Petitioner has not demonstrated a legal basis for an award of attorney's fees. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of April, 2000. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A. 400 Julia Street Titusville, Florida 32796 Joe D. Matheny, Esquire 355 Indian River Avenue Titusville, Florida 32782-6526 Thomas E. Gamble, President Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922 Eugene C. Johnson, Chairman District Board of Trustees Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922
The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Mary Parker-Abernathy, has been employed as a Guidance Counselor by the Escambia County School Board for approximately 20 years. In that capacity she is a certified guidance counselor. She also is certified in school psychology. In October 1988, Robert Lindner became Director of the George Stone Vocational Technical Center in Escambia County. The Center serves both high school students and post-secondary (adult) students. George Stone Vocational Technical Center was the school at which Petitioner performed her guidance counselling duties. Prior to August 14, 1989, Petitioner was assigned certain students to counsel. The students she was assigned consisted of a mixture of high school and adult education students. Additionally, prior to 1989, Petitioner was responsible for administering and scoring various educational tests in the assessment center when Charlene McArthur, 1/ the person ordinarily responsible for the assessment center testing was absent. When Mr. Lindner began as the Director of the Vocational Center, he was unhappy with the assessment center's performance and wanted to improve and enhance the assessment center's professionaliam and testing. Mr. Lindner felt that the assessment center's testing was becoming more and more important in demonstrating various accountability and performance standards which were increasingly being required by both the state and federal government. Mr. Lindner also wanted to discover whether there were other testing instruments which might also be appropriate for use in the assessment center in determining the various students' needs. Mr. Lindner wanted to place one of his certified counselors in the assessment center in order to begin the process of enhancing the assessment center's performance. Mr. Lindner felt that Petitioner was the best able candidate to play that role and desired for her to exercise some creativity in the assessment center, especially in discovering how the assessment center could be improved. Petitioner was informed of Mr. Lindner's decision on August 14, 1989, when she returned from summer vacation. Petitioner absolutely did not want to move into the assessment center and felt very strongly that there was not a need for two people in the assessment center. Because of Petitioner's attitude towards her move to the assessment center instead of being a creative employee in her new role and utilizing her skill and expertise in that role, Petitioner became a minimal performance employee. Because Petitioner was not performing in her new position in the manner Mr. Lindner desired he sought out another counselor to take over that role. At the end of the school year, in May of 1990, Petitioner was again given her old duties of counseling students and was removed from the duties she had been performing in the assessment center. The transfer, either to the assessment center or back to counseling, did not involve any loss of pay, loss of status, or loss of benefits in Petitioner's employment. Currently, under Ms. Parker-Abernathy's replacment, the assessment center is housed in a separate "department" along with several other combined functions for meeting various student needs. The center has been recognized for its performance and is considered a model program for the State. The evidence was abundantly clear that Ms. Parker-Abernathy suspected that her race (Black) was the basis of her changed counselor duties. She based her assumption on the fact that she had not been consulted by Mr. Lindner prior to her change in duties. There was no evidence submitted that demonstrated race as being the motivation for Petitioner's change of duties. Likewise, there was no evidence that the change in duties had any adverse impact on Petitioner's employment. What was abundantly clear from the evidence was that Petitioner was unhappy with her new assignment and that that was the sole basis for her view of the position she was in, the performance of her duties in that position, and her eventual filing of this petition for relief. Given the facts of this case, Petitioner has failed to establish a prima facie case of discrimination and the petition for relief should be dismissed.
Recommendation It is accordingly, recommended, based on the foregoing Findings of Fact and Conclusions of Law, that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of February, 1992. DIANE CLEAVINGER 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 10th day of February 1992. COPIES FURNISHED: Mary Parker-Abernathy, pro se 1116 North Alcaniz Street Pensacola, Florida 32503 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue The issue in this case is whether Respondent wrongfully terminated Petitioner's continuing contract of employment.
Findings Of Fact Petitioner is currently a doctoral level graduate student. At all times relevant hereto, she held a continuing contract as a professor at SCC in the Networking and Electronics Program (the "Networking Program"). Respondent is a community college within the state community college system. It is governed by its Board of Trustees. Dr. Ann McGee is president of SCC; vice president of Educational Services is Dr. Carol Hawkins. Angela Kersenbrock is the dean of Career Programs, including the Networking Program. Department chair in that program is Leon Portelli. Beginning in calendar year 2003, SCC began to experience decreased student enrollment, especially in the area of the Networking Program. SCC instituted a program review under Dean Kersenbrock's tutelage. A program review provides for the collection of relevant data to ascertain the continued viability of programs within the college. The program review of the Networking Program found low and declining enrollment and retention, a perceived job market decrease, difficulty in recruiting industry partners, and limited internships for students. Based on those findings, a series of recommendations were made to improve the Networking Program. Included in the recommendations were the following: increase class size, reduce faculty (Reduction in Force (RIF)), cross-teaching in other areas, cut back on adjuncts, reduce contract length, consolidate courses and sections, and work closely with industry partners to locate jobs for graduates of the program. Many of the recommendations were implemented even before finalization of the program review. However, in February 2007, Dean Kersenbrock decided the measures being taken were not alleviating the problem. She then submitted her formal recommendations to the Board of Trustees. A formal presentation was made to the Board of Trustees on April 17, 2007. After much discussion and debate, the Board of Trustees approved the recommendation from Dean Kersenbrock's review committee to implement a RIF in the Networking Department. At that time, there were five faculty members in the department, including Petitioner. The other faculty members were: John DelGado, Ben Taylor, Bill Irwin, and Gary Belcher. The proposed RIF intended to reduce the faculty from five to two. Irwin and Belcher were immediately selected for termination due to the fact that they could teach fewer topics within the department than could the other three staff. After they were terminated, SCC had to select one of the three remaining staff (DelGado, Taylor, and Petitioner) to be the final cut for the RIF. Each of the three had identified strengths and weaknesses; so, the selection was a difficult one to make. In order to make the decision, the following factors were considered: (1) the essentiality of the position, (2) work performance, (3) attendance record, and (4) supervisory recommendations. If all those factors are equal between the faculty members being considered, then length of service to the college would be the determining factor.1 SCC evaluated DelGado, Taylor, and Petitioner and found them, on aggregate, to be equal as far as the four factors were concerned. Each faculty member had strengths and weaknesses within the four categories, but were essentially "tied" when it came down to making a decision.2 Petitioner correctly pointed out that of the three faculty members, she was the only one who had experience making presentations at national level conferences. This fact weighed in her favor, but it was not enough to outweigh the strengths of the other faculty members. Likewise, Petitioner has the ability to teach a number of different classes, a positive in her favor. But, again, her abilities did not make her more essential than the other two. Some questions were raised about Petitioner's work performance, attendance record, and poor supervisory recommendations. However, none of those questions indicated that Petitioner was inferior to her fellow professors. Neither of the parties offered into evidence a true comparison of the three faculty members. There was some indication that each had strengths and weaknesses, but each person's individual assets or liabilities weren't described with any particularity. Thus, a substantive de novo review of that part of Respondent's decision making process is not possible. When all was said and done, Petitioner's length of service at SCC was shorter than the other two, and, thus, she was selected for the final RIF cut. Pursuant to SCC policies and procedures, an employee affected by a RIF must be given at least two weeks notice prior to the reduction taking effect. Petitioner was advised twice concerning her termination: once in a letter from the director of Human Resources Development--letter dated April 26, 2007--and once in a letter from SCC's president, E. Ann McGee--letter dated May 17, 2007. The latter correspondence provided Petitioner her appeal rights. Petitioner was provided her severance package in accordance with SCC policies. President McGee's letter to Petitioner stated in part, "You have the right to appeal the Board's decision pursuant to Chapter 120, Florida Statutes." However, the letter did not address Petitioner's right to appeal directly to the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be given an opportunity to select a direct appeal to the Board of Seminole Community College. As far as the instant case is concerned, Petitioner failed to meet her burden of proof and the termination of her contract would be upheld. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of November, 2007.
Findings Of Fact The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards. During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male. Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled. Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones. On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder. Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30 a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed. Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate." Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door. At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode. After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances. J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual. The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts. Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint should be DISMISSED. DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Donald Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issues to be resolved in this proceeding concern whether the Respondent discriminated against the Petitioner as to her race and age, and by retaliation, by terminating the Petitioner from her employment.
Findings Of Fact The Petitioner, Edna Lee Long, was a long-time employee of Chipola College. She was employed for approximately 35 years by the College until her resignation on or about November 1, 2007. Her resignation was the alternative she selected to avoid termination. Chipola College, the Respondent, is a public higher education institution located in Marianna, Florida. It employed the Petitioner as a "Department Associate, Library Services" at the time of her resignation. She was hired in 1972 to be employed in the library and was employed there since that time, until she left employment. The College maintains a policy governing its information networks and use of the internet. The policy governs all computer and internet usage by College employees, using College facilities and networks. The policy prohibits the viewing of sexually explicit material by employees. The intent of the policy is to avoid harmful viruses that could pose a security risk from third party access to secure information, including confidential student records. It is inferred from the evidence that the policy is also intended to assist and maintain a certain moral standard in employees employed in positions of trust, and in helping to prevent violations of law in connection with what might be potentially viewed or downloaded as sexually explicit material. While violations of this policy by students carries disciplinary implications, those measures are essentially designed to remove a student's internet or College network use privileges, on College computers, if it is violated, rather than more severe consequences. With regard to faculty and staff policy violations, however, a zero tolerance policy is in effect. Employees are held responsible for confidentiality of their computer user-name, access to their computer user account and keeping their assigned passwords confidential. The Petitioner acknowledged receipt of and understanding of this policy and agreed to abide by it as to use of networks and the internet. The policy provides that all individual computer accounts are for the sole use of the single individual for whom the account was approved. Users of the network, internet or other online services are responsible for protecting the network's security by keeping their passwords confidential, not using another's account, nor letting their own accounts be used by another. They are required to report all security violations, or policy violations, to the management of the College, in the person of its network administrators. Matthew White is the College's Network Coordinator and has responsibility to monitor internet usage on College computers. This is accomplished through the policy by the use of computer monitoring software and protocols. The software is designed to search for certain keywords, terms or phraseology which might characterize a violation of the above-referenced policy. If any of the keywords or terms surface from any website addresses, a report is generated which is reviewed by Mr. White at least once per week. If the report indicates that a computer at the College accessed unauthorized websites with certain of the keywords contained in the software and protocol, Mr. White convenes an investigation to learn which computer and which person accessed the objectionable site or material. Once the investigation is concluded, an incident report is prepared by Mr. White and he submits his findings to his supervisor. Eventually it is submitted to the Human Resources departmental office for further attention. On October 23, 2007, the Petitioner was scheduled to work the night shift at the library. She left work and picked up her son at his high school and returned with him to the library. He was going to stay with her at the library while she finished her work that evening, during which time he was to study and take a practice ACT college entrance exam. He was to take the practice test online and so he had to access the internet to do so. By her own admission, the Petitioner used her user name and password to "log him in" to the required website, using her office computer which had been assigned to her. The Petitioner admitted that she knew that this was violative of College policy. The evidence does not reveal that her password had been disclosed to any other person. After the Petitioner logged her son onto her computer, she returned to the circulation desk to continue her work. Her son thus had access to and operated her computer for approximately one and one half hours. During a significant portion of this time the Petitioner was not able to view her computer where her son was sitting. During this time period, many sexually explicit materials and pornographic materials were viewed on the College network from the Petitioner's computer, by a person logged in under the Petitioner's username and password. There is no dispute that significant numbers of sexually explicit and pornographic images were viewed by this means. Evidence presented by the Respondent demonstrates a complete list of the internet sites and usage from the Petitioner's computer, during the relevant time period when the Petitioner's son had access to the computer and the pornographic sites were viewed. The computer website use history also indicates that the college preparatory practice examination was accessed during the same general time period as the pornographic websites. The Petitioner was unable to explain the presence of the graphic websites on the website history of her computer. Her son denied any such use or viewing of such websites, according to the Petitioner. Clearly however, the ACT test site and the pornographic websites were viewed on the same computer, at the exact times when the Petitioner's son was admittedly logged on to the Petitioner's computer, with use of her password, on the College network. The explanation that the Petitioner's son may have viewed the pornographic materials in question played no part in the employment decision involved in this case, however. There was no evidence presented that the Petitioner, or any other person, ever told her supervisors, or College administrators of the explanation for the presence of the pornographic images and materials viewed prior to this hearing. The Petitioner simply denied her own involvement. The automatic monitoring software referenced above, resulted in the generation of a report concerning the referenced internet usage for October 23, 2007, which was triggered by certain keywords which showed potential violations of the referenced policy. Mr. White became aware of this monitoring report and conducted an investigation, with the resulting incident report, at the conclusion of the investigation. Under the subject policy, this is a standard procedure for handling suspected violations of the policy. Respondent's Exhibit 2, in evidence, shows the keyword that initiated the investigation which led to procedures being followed which enabled Mr. White to determine which computer had been used to access illicit images or materials. Thereafter, Mr. White researched the Petitioner's computer and searched for internet files. He created a log of the internet files from the Petitioner's computer, printed evidence of that usage, and confirmed the user name and password used for the Petitioner's computer and entered that information into his report. The website and pornographic images shown in that report are not simply spam e-mail received randomly or accidently from a third party. This is because Respondent's Exhibit 1, in evidence, shows actual internet usage and website traffic, originated from the Petitioner's computer and not merely received from a third party. The incident, in effect, involved active searching by the user of the computer during that relevant time period. The log, for example, shows illicit material was searched with the keywords "anime" and "porn" and the resulting websites that were viewed from that computer, derived from that search. There is no question that the items shown in Respondent's Exhibit 1 are very graphic and are not random "popup" images which appeared without being searched for. Mr. White also established that the Petitioner's password was used in accessing the sites. He concluded that an individual was actively looking at pornographic sites for about 45 minutes on the Petitioner's computer, using her user name which also required her password to access. In the absence of further explanation, the College administrators believed that the Petitioner had accessed the sites herself. Mr. White informed his supervisor, Dennis Everett, of the situation and submitted his report. It was soon thereafter brought to the attention of Karan Davis, the Associate Vice- President for Human Resources. Both White and Everett came to Ms. Davis with the incident report and the usage log for the Petitioner's computer and informed her of the inappropriate use of that computer with the Petitioner's username and password. Ms. Davis then determined that the Petitioner was working during the times in question, in the library, when the sites were viewed and her account thus accessed. She therefore determined that a violation of the subject policy had occurred. Ms. Davis then conferred with the College president who made the decision to either terminate the Petitioner or give her an opportunity to resign or retire. Ms. Davis approached Ms. Long on November 1, 2007, with the incident report, a sample of the internet usage from her computer, and a termination letter from the president. The Petitioner decided to accept retirement from her position rather than termination and is thus receiving retirement benefits at this time. Contrary to the Petitioner's belief, expressed in her testimony, there is no persuasive evidence that the Petitioner was targeted or that there was any conspiracy related to use of her password by others, possibly in the College administration, to, in effect, "plant" illicit materials or images on her computer in order to generate a reason for her termination. There is no persuasive evidence that her computer was accessed by a third party (other than her son) or that her password- protected security with regard to her computer was breached. The monitoring process used by Mr. White and the administration to monitor the College network, or the evidence regarding it, does not show evidence of a virus or a mistake made in that process. There is no credible evidence to show that the Petitioner's password was used by Mr. White or any other person in or out of the College administration. Only the Petitioner knew, or should have known, her password. If the password had been re-set by a third person using her computer, she would have known about it the next day. Moreover, even if Mr. White or others in the administration had access to her password, the un-refuted evidence shows, by her own admission, that the Petitioner used her password to give her son access to her computer and the internet on October 23, the day in question. It is very unlikely that, had Mr. White or others in the College administration intended to "frame" her or "plant material" on the Petitioner's computer for nefarious reasons, they fortuitously and coincidently selected that same day, and one and one-half hour time period to do so. If they knew her password, and intended to use it for such purposes, they could have done so anytime over a period of days, weeks, months or years. Ms. Davis's testimony is uncontradicted in showing that the College was not conducting any investigation of the Petitioner until Mr. White and Mr. Everett approached Ms. Davis concerning the violations shown on the Petitioner's computer history for October 23, 2007. In fact, the Petitioner was given consistently good employee evaluations by the College for the entire time period between the 1997 discrimination complaint, related to salary, and 2007. THE RETALIATION CLAIM The Petitioner has contended that she is being retaliated against by the employment action taken because of a 1997 charge of discrimination that she filed against the College, while she was an employee, with the Florida Commission on Human Relations. That controversy stemmed from her perceived pay inequity. It was resolved, however, by an agreed-upon settlement, which resulted in her receiving an appropriate pay raise at the time. Since that time, although she has met with and discussed salary issues with her superiors or supervisors, she has made no other formal complaints concerning salary issues or other issues. The Petitioner has conceded that her complaints or requests about pay, during the interim period of time since 1997, were not based on age or race issues and admits that she never filed any charge of discrimination concerning any salary issues since 1997. Ms. Davis was not shown to have retaliated against the Petitioner and had no knowledge of the 10-year-old complaint at the time the subject employment action was taken, or at least she had no recollection of it. Mr. White was not employed at the College in 1997 and had no knowledge of the previous complaint to the Commission. The Petitioner received favorable employment evaluations between 1997 and 2007 and received the regular cost of living salary increases in the same manner as other employees during that period of time. None of the evidence presented by the Petitioner showed any race or age-related issue concerning salary or pay grade treatment. Some employees were hired who were assigned some of the Petitioner's duties, but those were employees with more qualifications than the Petitioner. The Petitioner, at the time of the hearing, did not have a degree. The Petitioner contends that the results of a pay study, conducted by the College, were discriminatory. She apparently raised a concern about purported pay inequity sometime during the period 1999 through 2000 (and reiterated by her later). She sought pay equity and upgrading of her position in discussions with her supervisors. She was told to wait while a third-party consultant, hired by the College, completed a pay and salary range study. Ms. Davis told her that no position would be re-classified until after the study was completed. As a result of this study the "Department Associate" position was approved in October 2000 and the Petitioner was moved into that position with that job title in 2001. She did not receive a salary increase, however, at that time. The salary consultant's study developed revised position descriptions and included a market study for ascertaining appropriate pay or pay ranges for those positions. The consultant set ranges for those positions at the College and the recommendations were apparently adopted by the College. It was determined that if a particular employee was earning a salary which fell within the approved range then the employee was deemed to be appropriately paid. The Petitioner did not demonstrate that she was outside of an approved pay range for her duties and did not establish that the study, nor any of Petitioner's objections to her pay grade amount, had anything to do with the employment action taken on November 1, 2007, at issue in this case. It is noteworthy that only College employees who were receiving salaries below the minimum pay range for their job descriptions received any salary increases. There were also white males at this time who did not receive pay increases for that same reason, because they were already earning salaries at or above the minimum of their pay range for their job descriptions, as was the Petitioner. The Petitioner maintains that the facts surrounding a Southern Association of Colleges (SACS) accreditation study showed discriminatory motives on the part of the College directed at her. In essence, she contends that the SACS study showed that the College had misrepresented to SACS that the library was fully staffed when it was not. There were only five employees when the accreditation standards called for seven employees, under the circumstances prevailing at the time. The College then added the necessary number of employees and, upon receiving its accreditation, apparently in late October 2007, immediately thereafter terminated the Petitioner. That subjective belief on the part of the Petitioner has not been supported or corroborated by any persuasive evidence, however. There was no demonstrated relationship between the employment action taken against the Petitioner and the accreditation or results of the study. Although the Respondent has not hired for the Petitioner's position as yet, it still has a larger library staff than it did when the fault was found by SACS as to library staffing, during the accreditation study. There is no proven relationship between the Petitioner's announced and contemplated entry into the DROP program and the subject employment decision. There was no convincing proof that the employment decision had anything to do with her announcement about entering the DROP program versus the investigation made by the College concerning the Petitioner's computer usage or use of a password to allow another to use her computer wrongfully. The Petitioner has not established persuasive evidence which would show that the policy concerning computer and internet usage was discriminatorily applied. The Petitioner has shown that no similarly-situated comparator employees, outside her protected class were treated more favorably, either because of race or age. There were three similar instances shown by the evidence to have occurred at the College. No employee in those instances was treated differently than the Petitioner. Ms. Davis investigated and enforced a policy as to the similar violations in the same manner. All three comparator employees involved were given the opportunity to resign, retire, or be terminated. None of them was given a warning on a first offense. Those three comparators were not within the Petitioner's protected class because they were Caucasian. Two were Caucasian males and one was a Caucasian female. The males were, respectively, 46 and 61 years of age and the female was None of those comparators was given a second chance before termination or constructive termination. The Petitioner's belief otherwise was based upon hearsay and unsubstantiated rumor. Ms. Davis was directly involved in the employment actions taken against those comparator employees and established that no warning was given to any of them before they were terminated. No employee outside the Petitioner's protected class has been hired to replace her in her former position. In fact, her former position is still vacant. In summary, there is no preponderant, persuasive evidence to show that the Petitioner's resignation or retirement, which was a constructive termination, was based on age, race, or retaliation for engaging in earlier protected activity as envisioned in Chapter 760, Florida Statutes. There is no persuasive evidence that discrimination of the type complained of was committed by the Respondent against the Petitioner. It does appear, from the facts established by the evidence in this case, that the termination decision was a harsh one. The Petitioner had a consistently favorable employment record with the College and, certainly, if any employee was entitled to a warning before the ultimate penalty was exacted by the College, given the facts of this case, she should have been so entitled. It is true that, at the time of the termination, the College administrators apparently did not know that the Petitioner's son had been using the computer at the time in question. However, in the de novo context of this proceeding, since the discrimination claim was filed, the College has become aware of the fact that, although the Petitioner used her password wrongfully to log her son onto the College computer system and Internet, that the Petitioner herself had nothing to do with accessing the illicit websites at issue. This fact, coupled with the Petitioner's long-time good employment record with the Respondent shows, based upon the facts of record at least, that the employment decision was unduly harsh. No actionable discrimination of the type raised in this case was proven, however.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Petition for Relief be dismissed in its entirety. DONE AND ENTERED this 25th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2009.
Findings Of Fact Respondent, Charles L. Smith, holds a temporary state teaching certificate number 514251 issued by the State Department of Education covering the area of physical education. He has been a teacher for fourteen years and holds a master's degree in special education. He is presently the head football coach and a physical education instructor at Stewart High School in Lumpkin, Georgia. This is not respondent's first involvement with a disciplinary proceeding. On June 8, 1983, petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint against Smith alleging that while he was employed as a teacher at Dunnellon High School (Marion County) in school year 1982-83, he made derogatory statements to students and engaged in improper conduct of a sexual nature with a minor female student. The matter eventually culminated in an administrative hearing held on August 11, 1983, where one of petitioner's witnesses was Ruth Annette Edwards, a teacher's aide in Smith's class. Her testimony in that proceeding has been received in evidence as petitioner's Exhibit 3. The testimony can be characterized as damaging, for Edwards gave testimony which tended to corroborate the allegations against Smith. Although the Hearing officer recommended that Smith be found guilty of all charges and that his certificate be revoked for two years, in its Final Order rendered on November 9, 1983, the Education Practices Commission (EPC) expressed "strong doubts that the incident (with the female student) actually occurred" and instead placed respondent on probation for one year and imposed the following conditions: The Respondent will break no laws, nor any rules of the State Board of Education. The Respondent will perform in a satisfactory manner as a teacher, and will cause reports of his performance to be forwarded to the Education Practices Commission. Therefore, under the terms of pro- bation, if respondent violates any state law or EPC rule during the ensuing year, he risks the loss of his teaching certificate. The probation period expires on November 9, 1984. Respondent's contract to teach at Dunnellon High School was not renewed in school year 1983-84. However, Smith's failure to teach there was not due to the EPC disciplinary action, but rather was attributable to his failure to pass the mathematics part of the teacher certification examination. Because of this, he weighed alternative offers from Alachua County School Board and the State of Georgia, and accepted the latter offer because of its higher pay. Sometime prior to 10:30 a.m. on Sunday morning, January 29, 1984, the Clara Davis household in Dunnellon, Florida, received a telephone call. Mrs. Davis answered the telephone and was asked by the caller to speak to her grandson, Pretis Griffin, then nineteen years old and a senior at Dunnellon High School who resided with her. Pretis was a former student in Smith's English class in 1982-83, and also knew him from varsity athletics. Mrs. Davis responded that Pretis was still asleep and hung up. The same caller telephoned back a few minutes later and said he was calling long distance from Gainesville and needed to talk to Pretis. She roused Pretis, who answered the call. Pretis testified the caller identified himself as respondent and sounded like Smith. Although Smith denied he made the call, it is found that Smith did indeed telephone Pretis on January 29. After the two made small-talk initially, Smith then asked Pretis if he would do him a favor. Pretis said "yes," and Smith said "I want you to tell Mrs. Edwards something." Pretis asked "What," and Smith replied, "Tell Mrs. Edwards thanks for what she's done, and I will get back at her through her husband." After some more small-talk, the two ended the conversation by Smith saying, "Don't forget to tell her," followed by a "little laugh." After the call ended, Pretis told his grandmother the caller was Coach Charles Smith. The next day, Monday, January 30, Pretis approached Ruth Edwards at school and told her respondent had telephoned him and wanted to convey a message. Pretis then told her "Coach Smith said thanks for what you done and he'll get you back through your husband." Upon hearing this, Edwards simply shrugged and walked away. The following Sunday, February 5, 1984, the Davis household received another telephone call for Pretis prior to 10:30 a.m. According to Pretis, it was the same caller as the previous Sunday, and despite Smith's denial, it is found that respondent made a second call to Pretis on February 5, 1984. After making small-talk, Smith eventually asked if his message had been delivered and what Edwards' response had been. When Pretis responded that he had, and that Edwards had merely shrugged and walked away, Smith commented "Oh, she thought it was a joke," and Pretis said "I guess." The two then discussed an upcoming basketball game at Dunnellon the following Saturday night and the fact that Smith might attend the game. In the next day or so, Pretis told Edwards at school that Coach Smith had telephoned again and that he might attend the high school basketball game that weekend. Edwards gave no visible response to Pretis' comment. Edwards, who readily acknowledged she dislikes Smith, initially claimed that Pretis relayed three separate messages to her from Smith, and also gave a more threatening account of the conversations between Pretis and Smith. However, it is found that only two calls took place, and the substance of the calls was accurately portrayed by Pretis. After Pretis told Edwards that Smith had telephoned a second time, she went to the assistant principal and advised him that Smith had threatened her. Later, Edwards and Pretis were interviewed, and the matter was then turned over to the Marion County School Board, and eventually referred to petitioner. That prompted the issuance of the administrative complaint herein. Smith, who has never met Edwards' husband, denied making the calls. He seemed fully aware of the terms of his probation, and recognized that any violation might jeopardize his teaching certificate. He contended it would be "stupid" to threaten Edwards because it would lead to the exact predicament he finds himself in. On the two mornings in question, he claimed he was either at work (as a clerk at a 7-11 store in Gainesville) or in church. However, his wife was unable to confirm this because of the passage of time since January and February, 1984. Until the hearing, Smith has not seen nor spoken to Edwards (or her husband) since the administrative hearing conducted in August, 1983 and has never carried out any threats against her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 6B-1.06(3)(m) and that he be placed on probation for a period of one (1) year. DONE AND ENTERED this 8th day of November, 1984, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of November, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Arthur G. Haller, Esquire 771 N.W. 23rd Avenue, Suite 1 Gainesville, Florida 32301 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
