The Issue Whether Lee Mace struck Suarez and is thereby guilty of misconduct in office contrary to the provisions of Section 231.36(6), Florida Statutes.
Findings Of Fact Petitioner, Robert L. Blubaugh, is the superintendent of the School District of Brevard County, Florida. Respondent, Lee Mace, is a member of the instructional staff of the School Board of Brevard County, Florida, employed pursuant to a continuing contract of employment. On or about May 10, 1977, at a meeting of the School Board of Brevard County, Florida, Petitioner recommended to the School Board that Respondent be dismissed from employment. This recommendation was based upon reports that Respondent had, on or about April 22, 1977, struck a student, George Suarez, on the premises of Melbourne High School in Brevard County, Florida. The Board acted upon the Petitioner's recommendation and suspended the Respondent with pay pending an evidentiary hearing pursuant to the provisions of Florida Statutes 231.36(6), upon the allegations asserted by the Petitioner. The School Board further voted to seek the appointment of a hearing officer the Division of Administrative Hearings for the purpose of conducting a hearing on the Petitioner's allegations. The School Board's action was set out in a complaint and request for hearing, dated May 18, 1977, and forwarded to the Division of Administrative Hearings. The Division of Administrative Hearings assigned Stephen F. Dean as Hearing Officer in this matter. Notice of formal hearing was given for a hearing to be conducted on June 30, 1977. George Suarez was a student at Melbourne High School in Brevard County, Florida. He had been a member of the track team at Melbourne High School coached by the Respondent. Immediately prior to April 22, 1977, Suarez quit the track team. This was Suarez's third resignation from the team during the 1977 school year. On April 22, 1977, the Respondent entered the classroom of Ned Brown between second and third period at approximately 9:30 a.m. He asked George Suarez to come into the hall, and Suarez refused. Respondent then sought permission of Ned Brown to enter his classroom and speak with Suarez. He was granted this permission and spoke to Suarez concerning his return of track equipment issued to Suarez. Suarez refused to return the track equipment alleging that the Respondent had entered his track locker and given away his personal belongings to other members of the track team. The Respondent told Suarez that his belongings had been removed from his track locker but had been placed in Respondent's file cabinet in his office where he could pick them up upon return of his track equipment. During this exchange, the discussion became more heated and following New Brown's suggestion, Mace began to leave the classroom. At this time, Suarez called out to Mace words to the effect, "Why don't you beat me up like you said you would?" The Respondent, continuing to leave the room, said to Brown words to the effect, "Scum like him isn't worth beating up" and continued to leave the classroom. At this point, Suarez shouted at Mace, "You are the scum." Mace questioned Suarez concerning what he had said. The testimony of the various witnesses concerning what occurred immediately thereafter is somewhat conflicting, but there is general agreement that Suarez, who had been sitting, jumped to his feet and while doing so or immediately thereafter, Mace struck him cuting Suarez's lip. The witnesses' testimony indicates that Suarez aggressively jumped from his seat to confront Mace, and that Suarez had a reputation for being quick tempered and for fighting. However, Mace admits that Suarez never struck at him. The witnesses' testimony generally agreed that the Respondent had not struck Suarez a deliberate forceful blow, based upon their observations and the fact that the Respondent, a man with the strength and build of a professional athlete, would have severely hurt Suarez had that been his intention. There is no dispute concerning the relevant facts concerning what immediately followed the physical contact between the Respondent and Suarez. Lee Mace enjoys a good reputation as an instructor and coach at Melbourne High School among the students, faculty, and parents. His reputation is based upon his working with student athletic teams and bringing the members of these teams together in activities which build character and which are morally uplifting. The evidence in this case indicates that he had given a great deal of personal attention, and had arranged to provide special coaching to George Suarez in an effort to keep him interested in athletics as a means of self expression to overcome Suarez's disciplinary and academic problems. Mace had also spent many hours of his own time in repainting the football stadium at Melbourne High School and making improvements to the student locker rooms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend to the School Board that Lee Mace be suspended without pay for a period of thirty (30) days. DONE AND ORDERED this 1st day of September 1977, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606 William C. Walker, Esquire 3435 S. Hopkins Avenue Post Office Box 1084 Titusville, Florida 32780
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed as a classroom teacher by Petitioner under a continuing contract. Respondent has been a classroom teacher for nineteen (19) years, and has been employed by Petitioner for the last eighteen (18) years. Petitioner taught primarily at elementary school level but, at various times, she has also taught at the high school level. Respondent was awarded a continuing contract of employment by Petitioner in 1973. Respondent has never been, other than this proceeding, the subject of any formal disciplinary proceeding during the time she has been employed by the Petitioner. On September 25, 1957, Respondent brought three (3) students to Helen Ramsey, Assistant Principal, Port St. Joe High School, for discipline due to their alleged misbehavior in the Respondent's classroom. The more credible evidence shows that Respondent insisted that Ramsey discipline the students in her presence. The reason for Respondent's insistence was that students previously sent by Respondent for discipline had bragged to other students that no punishment had been administered and this created further disciplinary problems in her classroom. Ramsey requested that Respondent leave and let her "handle the situation." Due to Respondent's insistence, Ramsey discussed the matter with Respondent alone in Ramsey's office. After this discussion, Ramsey agreed to question the students. Two (2) students admitted misbehaving in the classroom and were paddled. The third student denied misbehaving in the classroom and Ramsey refused to proceed any further until she had questioned the student without Respondent being present. After further discussion, and with Ramsey refusing to proceed any further, Respondent left. There is insufficient evidence to show that Ramsey ever gave Respondent a direct order to leave her office or the reception area but only requested that Respondent leave and allow Ramsey "to handle the situation" which Respondent did, after a lengthy and heated discussion with Ramsey. Ramsey had not experienced a problem, such as this, with Respondent before and, although Ramsey saw no apparent reason for Respondent's "unusual" attitude, Ramsey did not question Respondent at any time concerning her attitude. The entire incident between Ramsey and Respondent lasted about thirty (30) minutes, including the five (5) to ten (10) minutes Respondent spent with Ramsey without the students in the beginning and the ten (10) to fifteen (15) minutes Respondent was in Ramsey's office while Ramsey discussed the matter with students and paddled two (2) of them. On September 25, 1986, Edwin Williams, (Williams) Principal, Port St. Joe High School, was away from school, and therefore Ramsey reported the incident to Superintendent Walter Wilder (Wilder). When Williams returned on September 26, 1987, Ramsey reported the incident to him. On September 26, 1987, when Williams, became aware of the incident, he sent an aide, Ellie Padgett (Padgett) to Respondent's room to ask Respondent to report to Williams' office and for Padgett to stay with Respondent's class. Upon receiving the message from Padgett, despondent advised Padgett that she would go to Williams' office the next period which was her free period. While Padgett was in Respondent's room, Juanita Powell (Powell), Williams' Secretary, paged Respondent on the intercom and there was credible evidence that Respondent informed Powell that she would come to Williams' office shortly. After Padgett returned to Williams' office, Powell went to Respondent's room to inform Respondent that Williams wanted to see her. Respondent told Powell that she had planned on giving treats to her students at the end of the period and would come when she finished. After Powell returned to Williams' office, Williams went to Respondent's room and told her he wanted to see her in his office. There was credible evidence that Williams was angry with Respondent and expressed his anger when he demanded that she come to his office right away. Respondent went to Williams' office in about five (5) minutes after he demanded that she come. This gave Williams time to return to his office and "cool-off." No one advised Respondent what Williams wanted to speak to her about or that the matter needed immediate attention. Upon arrival at William's office, Williams confronted Respondent with the report of the incident regarding the students given to him by Ramsey. A heated discussion ensued and Williams told Respondent to leave his office and the school, and then Williams proceeded to Wilder's office. After Williams left, Respondent went to her classroom to gather up her personal things. While gathering up her personal things, Respondent was advised by Mr. Osborne, a school employee, to report back to Williams' office. Respondent reported to William's office and shortly thereafter Williams and Wilder arrived. Wilder advised Respondent that they were dealing with "what was potentially a serious disciplinary problem." At this juncture, Wilder directed Respondent to respond to a series of questions concerning the Ramsey incident which Respondent declined to answer, but addressed her remarks to Williams concerning what Respondent felt was Williams' unfair treatment of her during this incident. Respondent continued to discuss the matter with Williams even after he again directed her to leave the school premises. However, Respondent did leave the school in about ten (10) to fifteen (15) minutes. Respondent was not offered an opportunity to have another teacher present to witness the conversation during this meeting with Williams and Wilder. Respondent did comply, although belatedly, with: (a) the request from Ramsey to leave her office; (b) Williams' request to leave his office and the school premises and, (c) Williams' request to report to his office. There was credible evidence that Respondent's failure to notify the school secretary of her absence from duty on September 12, 1983, was due to Respondent's belief that her husband, Clarence Monette, had advised the secretary of her absence. There was credible evidence to show that Respondent was dividing her time between Highland Elementary School and Port St. Joe High School on May 22, 1986, and that Respondent's reason for not reporting to Highlands on May 22, 1986, was due to her staying at the high school to attend an art festival with the children. There was credible evidence that on September 23, 1986, Respondent was absent but made arrangements to have her lesson plan delivered to the school secretary and for a substitute teacher; however, Respondent failed to notify school authorities that she had engaged a substitute teacher which resulted in the school engaging a substitute teacher also. Respondent has had an annual formal evaluation for each of the eighteen (18) years she has taught in the Gulf County School district and, during that entire time, no school administrator has ever indicated that she was guilty of insubordination or that she had willfully neglected her duties. There was insufficient evidence to show that Respondent intended to violate school policies or to disobey an order of her superiors. There was insufficient evidence to show that Respondent's material acts and omissions were willful.
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 Petitioner, School Board of Gulf County, enter a Final Order dismissing all charges filed against the Respondent, Audrey Monette and that Respondent be restored to her position as a continuing contract employee of the Gulf County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 2nd day of July 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4471 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in substance in Findings of Fact 5, 6, 7, 8 and 9. First and second sentence adopted in substance in Findings of Fact 12 and 13 except for that part of second sentence regarding Respondent ignoring Williams' orders which is rejected as not supported by substantial competent evidence in the record. The balance of paragraph 3 adopted in substance in Findings of Fact 14 and 16 except for that part of the fifth sentence concerning Respondent calling Williams an "Uncle Tom" and that part of sixth sentence concerning Respondent charging Williams with believing Ramsey in preference to her which I reject as immaterial and irrelevant. Reject that portion of paragraph 4 concerning Respondent's refusal to leave Williams' office as not supported by substantial competent evidence in the record. The balance of paragraph 4 is adopted in substance in Finding of Fact 17. 5-6. Covered in background material. 7-8. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent 1-2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Findings of Fact 5, 6 and 7. Adopted in Finding of Fact 6. Not stated as a finding of fact but as recitation of testimony. However, it is covered in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Not stated as a finding of fact but as a recitation of testimony. However, it is covered in Finding of Fact 6. 10-11. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. 14-15. Adopted in Finding of Fact 11. 16-17. Adopted in Finding of Fact 12. 18-19. Adopted in Finding of Fact 13. 20-22. Adopted in Finding of Fact 14. Adopted in Findings of Fact 14 and 15. Adopted in Findings of Fact 14 and 19. Adopted in Finding of Fact 15. Adopted in Finding of Fact 2. 27. Adopted in Findings of Fact 16 and 17. Adopted in Finding of Fact 18. Not stated as a finding of fact but a recitation of testimony but covered in Finding of Fact 17. Adopted in substance in Finding of Fact 17. 31-32. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Adopted in substance in Finding of Fact 25. COPIES FURNISHED: Cecil G. Costin, Jr., Esquire Post Office Box 98 Port St. Joe, Florida 32456 Philip J. Padovano Post Office Box 873 Tallahassee, Florida 32302 B. Walter Wilder, Superintendent Gulf County School Board Port St. Joe, Florida 32456 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
The Issue This case concerns a Petition for the Revocation of Teacher's Certificate brought by the State of Florida, Department of Education, through Lynnl Guettler, Chairman of the Executive Committee of the Professional Practices Council, against Stephan P. Lee, Respondent, who holds a Florida teaching certificate number 339018, Special Post Graduate, Rank IA, valid through June 30, 1987, covering the areas of social studies and junior college. The allegations of the Administrative Complaint accuse the Respondent with writing one or more notes to Alice Ann Lee during the fall of the school year 1978-79 at a time when Alice Ann Lee was a thirteen-year old student at Ft. Caroline Junior High School, Duval County, Florida. The allegations further assert that Ms. Lee is not a family relation of the Respondent. It is contended through the complaint that in one of the notes the Respondent indicated his apartment address and invited Alice Ann Lee to visit him at that apartment. It is alleged that on one evening during the first nine weeks of the 1978-79 school year, Alice Ann Lee and one Laura Edenfield went to the Respondent's apartment, where he served alcoholic beverages to the two named individuals, at a time, when these individuals were students and had not reached their majority. In connection with events of that evening, the Petitioner asserts that the Respondent smoked a "joint", viz. marijuana, which the students had brought to his apartment. Finally, it is alleged that the Respondent, through one of the notes written to Alice Ann Lee, invited her to go to St. Augustine, Florida, with him for a "day on the beach and in the shops" and to go "to a nice restaurant for dinner and drinks". For these acts, the Respondent purportedly has violated Section 231.28, Florida Statutes, in that the conduct alluded to constitutes gross immorality and personal conduct which reduces the effectiveness of the Respondent as an educator. The Respondent is also charged with the violation of Subsection 231.09(2), Florida Statutes, for not setting a proper example for students. The Respondent is further charged with a violation of Rule 6H-1.02(c), Florida Administrative Code, for failing to protect students from conditions harmful to learning, health and safety and with a violation of Rule 6B-1.02(d), Florida Administrative Cede, for conducting professional business in a way that exposed students to unnecessary embarrassment and disparagement.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Education, Professional Practices Council's petition for the revocation of teaching certificate of Stephen P. Lee, Respondent. The exact details of that petition are related in the issues statement of this Recommended Order and that account in the issues statement is made a part of the Findings of Fact herein. The Respondent has answered the petition and requested a formal hearing under the provisions of subsection 120.57(1), Florida Statutes. The facts reveal that the Respondent was employed as a school teacher during the year 1978-79 in a position at Ft. Caroline Junior High School, Duval County, Florida. Two of the students who were being taught by the Respondent were Alice Ann Lee and Laura Edenfield. These individuals were students of the Respondent in separate classes. In the fall of 1978, Alice Ann Lee was thirteen years of age and Laura Edenfield was sixteen years of age. Both of the students were attending the ninth grade. The students in question in the academic year 1978-79 had made a poor academic showing and their attendance record was not satisfactory. In the first nine weeks of the school year, Alice Ann Lee wrote a note to the Respondent indicating that she felt that the Respondent was a nice teacher and she would like to be his friend. The Respondent replied to that note by a letter, a copy of which may be found as Petitioner's Exhibit #1 admitted in evidence. Beyond that point of the first reply there ensued a series of notes from the student Lee, two or three in number, and three additional notes or letters from the Respondent. Copies of the additional notes or letters written by the Respondent may be found as the Petitioner's Exhibits #2 through #4, admitted into evidence. In the Respondent's correspondence, Petitioner's Exhibit #2, he mentions his home address and tells Alice Ann Lee that she may call him by telephone when she feels so compelled. That correspondence also tells Alice Ann Lee that she is "welcome to drop by. . ." the Respondent's apartment if she would so desire. The student, Laura Edenfield, was a friend of Alice Ann Lee, and Edenfield had also been extended an invitation to visit the Respondent at his apartment. To assist the students in finding his home, the Respondent had drawn a diagram map directing them to his apartment and a copy of that diagram may be found as Petitioner's Exhibit #5 admitted into evidence. The students acted on Respondent Lee's invitation and called him one Friday night during the fall term of 1978-79. The call was made while the Respondent was at home in his apartment and the Respondent indicated that it would be acceptable if Alice Ann Lee and Laura Edenfield came to visit him on that evening. The students arrived at the Respondent's apartment between eight and nine p.m. on the night referred to above. The visit lasted until approximately midnight. While the students were in the apartment, the Respondent asked them if they would like to have a drink and among the choices offered were alcoholic beverages, to include beer and bourbon. Respondent recognized that the students were minors and not entitled to consume alcoholic, notwithstanding the fact that both students had previous experiences with alcoholic beverages before this occasion. The conversation between the Respondent and the students was social in nature as opposed to tutoring for school work or counseling. At one point during the visit, the Respondent put his arm around the shoulders of Alice Ann Lee. Alice Ann Lee consumed a number of glasses of bourbon which glass the Respondent continued to fill when the contents would be consumed. Laura Edenfield drank five or six containers of Coors beer. When the students left the apartment, Alice Ann Lee was inebriated and Laura Edenfield, who was driving, had less control of her faculties than when she entered the apartment. The Respondent walked the girls to their car and kissed Alice Ann Lee on her lips. The students returned to the Respondent's apartment on the next day, arriving between eight and nine p.m. and staying until approximately midnight. While at the apartment, the students consumed more alcoholic beverages, namely, beer. In addition, the students had brought marijuana with them to the apartment and offered the Respondent the opportunity to smoke the marijuana with them. The Respondent agreed and the students smoked the marijuana. Again, the nature of the conversation was as stated in discussing the first visit made by the students to the Respondent's apartment. Subsequent to these visits, Alice Ann Lee's mother discovered some of the letters which the Respondent had written her daughter, and in the course of attempting to have her daughter readmitted from a suspension situation, revealed the existence of these letters to the principal of Ft. Caroline Junior High School. This information was imparted in November, 1978. Alice Ann Lee's mother also went on a local television station news program at six p.m. and made comments about her daughter's relationship with the Respondent concerning the letters, etc. A knowledge of the circumstances of the relationship also was gained by students in the school and by faculty members and Alice Ann Lee felt embarrassed by the situation and missed classes as a result of the circumstances; however, Ms. Lee does not feel that the situation affected her overall classroom performance. The Respondent also asked Alice Ann Lee to go to St. Augustine, Florida, with him and the details of this proposed trip are set out in the Petitioner's Exhibit #4, one of the aforementioned notes from the Respondent to Alice Ann Lee. They did not make such a trip. After being confronted with the accusation concerning the letters and the visits by the students to his apartment, the Respondent tendered his resignation to the Duval County School Board without the necessity for further investigation by that body. The Respondent's explanation of this matter, which was offered in the course of the administrative hearing, was to the effect that be had no immoral or inappropriate intentions in his relationship with the students, particularly Alice Ann Lee. He stated that he was attempting to counsel troubled youngsters who had not been reached by other methods of counseling. He also stated that after conferring with members of his family and the faculty, he determined to write the letters in the fashion that he did, hoping to discourage Alice Ann Lee's infatuation by scaring her through proposals which made it appear that he was interested in her romantically. In retrospect, the Respondent indicated that he felt that his approach was wrong and that he did not have the necessary qualifications to undertake counseling directed to these young people.
Recommendation It is recommended that the teaching certificate of the Respondent, Stephen P. Lee, be suspended for a period of two (2) years. DONE AND ENTERED this 5th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Harry B. Mahon, Esquire Mahon, Mahon and Farley 350 East Adams Street Jacksonville, Florida 32202 Dr. Juhan Mixon Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: STEPHEN P. LEE CASE NO. 79-1069 /
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a grocery supply company that operates several large warehouses. It supplies groceries to military commissaries. On November 26, 2002, Petitioner was hired by Respondent as a selector/stock picker. At some point, Petitioner became a stockchecker/loader. As such, Petitioner’s duties included gathering merchandise from Respondent’s warehouses, loading pallets and loading trucks. Petitioner’s primary work area was the front docks in the main warehouse; his direct supervisor was David Malloy. The main warehouse had two break rooms. Petitioner’s scheduled start time was 6:30 a.m. During the work day, Petitioner had scheduled breaks in the morning and afternoon. Each break was for 10 minutes. No breaks were scheduled between 6:00 a.m.-6:30 a.m. Additionally, Petitioner had a scheduled lunch period. Employees were notified of a break or lunch period through the PA system. There was no evidence that Mr. Malloy permitted unscheduled breaks. Prior to the end of January, 2008, GSC discovered that Hormel dinners and Capri Sun products were disappearing from the warehouse. Management and supervisors strongly suspected that these products were being stolen by employees. At some point, GSC supervisors found a hidden stash of food products in the break room of Building 11, one of Respondent’s warehouses also known as the repack area. This warehouse was located about 3-4 minutes’ walk away from the front loading docks in the main warehouse. In an effort to discover who had hidden the products, GSC supervisors were periodically checking the break room of Building 11. Between 6:00 a.m. and 6:30 a.m., on January 28, 2008, Kim Howell, a warehouse supervisor, entered the break room of Building 11 and saw Petitioner and Anthony Smith, also a loader, standing at a counter in the break room. Petitioner was drinking coffee and Mr. Smith was eating one of the Hormel products from the hidden stash. Ms. Howell asked what the two men were doing. Petitioner stated that he had come to Building 11 to get some coffee. He did not state that he had come to the warehouse to select any products. Mr. Smith did not explain his presence in Building 11 because he was eating. When Ms. Howell asked about the food he was eating, Mr. Smith admitted that the food was not his and that he did not know who it belonged to. Eventually, Ms. Howell instructed both men to “get back to work.” Both men returned to the front docks in the main warehouse. Eventually, Mr. Smith was sent home with instructions to return at 10:00 a.m. the next day. Petitioner remained at work. Ms. Howell retrieved the Hormel box from the trash and immediately reported the incident to her supervisor, Harry Madden. The product code on the Hormel box matched the product code of the hidden Hormel meals. Later, Ms. Howell told Petitioner the incident was being investigated. She indicated that he would be interviewed about the incident by Mr. Madden and that he should tell the truth. On January 29, 2008, Petitioner was interviewed by Mr. Madden. Ms. Howell was present. During the interview, Petitioner stated that he had gone to Building 11 to get a cup of coffee and that he saw Mr. Smith eating a Hormel meal in the break room when Ms. Howell entered the room. Mr. Madden and Ms. Howell thought Petitioner was more intent on asserting that GSC could not prove that Mr. Smith had stolen the product he was eating because the Hormel product could have been purchased anywhere in the Pensacola area. Mr. Madden asked Petitioner several times if he knew where Mr. Smith had gotten the Hormel product. Petitioner stated that he didn’t know because he saw the same thing that Ms. Howell saw, i.e., Mr. Smith eating the food. Mr. Madden felt Petitioner was being uncooperative based on the fact that he was in the break room with Mr. Smith and Petitioner’s attitude during the meeting. There was no evidence to show that Mr. Madden’s perception was unreasonable or a pretext for discrimination. Mr. Madden forwarded the issue of discipline to the Human Resources department, in part due to the perceived lack of cooperation by Respondent and, in part, due to the fact that Respondent was in a break room taking a break when it was not break time. The Human Resources department reviewed Petitioner’s work and discipline history. The records showed that Mr. Lindsey had been repeatedly warned and disciplined for tardiness. As testified to by Mr. Lindsey’s supervisor, Dave Malloy, the disciplinary write-ups included only those instances which warranted disciplinary action during a rolling six-month period. Because of his repeated tardiness, Petitioner had received a final warning. The records also showed that Mr. Lindsey had been disciplined for failure to adequately perform the duties of his position. Based on Petitioner’s disciplinary history and final warning, his presence in the break room during non-break hours, and his perceived refusal to cooperate during the company’s investigation of Mr. Smith’s activities, Mr. Lindsey was terminated on January 29, 2008. There was no evidence that Respondent’s reason for termination was unreasonable or a pretext to cover discrimination. Eventually, Mr. Smith admitted to the theft and was terminated for theft. Mr. Smith did not implicate Petitioner in the theft. Petitioner identified Kim Howell as the only non- minority employee who had allegedly been treated differently than him. He based his assertion on the fact that Ms. Howell was not terminated as he was over the events of January 28, 2008. However, Ms. Howell is clearly not similarly situated to Petitioner. She was authorized to be in Building 11 and was performing her investigative duties. She also was not on an unscheduled break. There was no evidence presented regarding Ms. Howell’s disciplinary history. In comparison, Petitioner was primarily terminated for being on an unscheduled break and for his past disciplinary history. Even though incorrect, Mr. Madden, based on the circumstances, reasonably believed that Petitioner was not cooperating in the investigation. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 24th day of June, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 24th day of June, 2009. COPIES FURNISHED: Fred Lindsey 5908 Princeton Drive Pensacola, Florida 32526 Michael S. Mitchell, Esquire Fisher & Phillips, LLP 201 St. Charles Avenue Suite 3710 New Orleans, Louisiana 70170 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41 to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976. On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16). The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows: "The Faculty Council and the President of the College were in full consensus in affirming the following specifics relative to solicitations on the campus: College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified dining areas and during the scheduled lunch hour of any given employee. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, Mr. James Rhoades, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature and notices which are not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed." The guideline is signed by Dr. McCracken followed by the following note: "Although inadvertently overlooked in the discussions with the Faculty Council, it is, of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business." The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows: "Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings." Solicitation is defined in the memorandum in pertinent part as follows: "College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed. College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership." The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated. Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications. The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired. The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3. Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties. At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting. (PERC Exhibit 9). As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA. Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses. The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied. The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting. The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort. The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation. The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.) The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC. In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later. PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation: . . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College." This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process. PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum. PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed by the Respondent did not result in any subversion of the election process. The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate. PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative. PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ." Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election. All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process. As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization. Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations. In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation. In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list within the period set out in the agreement was not the fault of the Respondent. No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
