Findings Of Fact Dr. Bert, a white woman, has been employed 25-1/2 years by the Department of Education (hereinafter "DOE"). Dr. Bert earned a Bachelor's of Science (1950), a Master's of Science in home economics education (1963), and a Ph.D. in home economics (1967) from the College of Economics at Florida State University. Beginning in 1950, Dr. Bert was employed as a teacher of high school home economics first at Union County High School (3 years), and then at Havana High School until 1965, when she took leave to finish her Ph.D. courses and write her dissertation. Dr. Bert first went to work for DOE in 1967 as a Vocational Studies Assistant. In 1975, she was promoted to the position of Program Director and worked in the area of research and development. While there, she helped Florida bring in over $30 million in federal grants for various vocational education programs (including home economics). During the period 1980-1985, when the federal government cut back the funds available for educational research and development, the R & D program was phased out; however, Dr. Bert remained as a Program Director in the R & D position, writing grants and seeking funds from other sources. In 1985, DOE was reorganized. Dr. Bert was laterally reassigned and given the job of Program Director I in home economics education by the Division Director, Dr. Joe Mills. Dr. Mills knew that Dr. Bert had earned her Ph.D. in home economics and asked her to take the position. As Program Director for Home Economics Education, Dr. Bert supervised a staff of four other professionals (Program Specialist III's) and was responsible for monitoring and administering the Florida and Federal government programs in home economics education, occupational education and homemaking education in all of the 67 local school districts. The Federal government provides Florida and other states with most of the monies needed for the administration of these programs, collectively referred to as "consumer and homemaking education." DOE's function is to establish the minimum education standards and curricula required in each area and otherwise to carry out the intent of Federal and Florida Law. As Program Director, Dr. Bert voiced repeatedly her concerns in 1992 regarding expenditures of federal funds earmarked for the Consumer and Homemaking Education Program which she described as illegal to Jerry Barnett, DOE's Budget Officer. The June 1993 report of audit on federal financial assistance programs at DOE for fiscal year 1992 confirmed that DOE was mis-spending federal monies, as Dr. Bert had pointed out. Dr. Bouie is a black woman, who had worked for DOE 14 years. She earned a Bachelor's of Science from Florida A&M University in home economics education (1967), a Master's of Science in home economics education from Tuskeegee Institute (1974), and a Ph.D. from Florida State University College of Education in administration and supervision (1983). From 1970- 1979, Dr. Bouie was a home economics instructor in Volusia County, Florida. Dr. Bert and Dr. Bouie were employed in 1992 in the Bureau of Vocational Programs and Services, which is within the Division of Vocational, Adult, and Community Education (the Division's name has now changed to "Division of Applied Technology and Adult Education" but will be referenced by its former name herein, or called the "Division"). Pat Hall (hereinafter "Hall") is the Bureau Chief of the Bureau of Vocational Programs and Services within the Division, and Lanny Larson (hereinafter "Larson") is the Director of the Division. On July 20, 1992, Castor issued a memorandum to the "Policy Group." The subject matter of the memorandum concerned the possible loss by minority employees of their positions or opportunities for advancement due to attrition and downsizing. The memorandum closed by announcing that Herb Parker (hereinafter "Parker") would be meeting with managers to development strategies to reduce the effect of attrition and downsizing and to enhance the composition of the work force. Hall, who was not a member of the policy group, was not aware of the July 20th memorandum, and never met with Parker. Neither Parker, Castor, nor Larson suggested to Hall that she promote a Black. Larson, as a member of the policy group, had seen the July 20th memorandum. Larson was never pressured by Castor to hire a Black and had never met with Parker pursuant to the memorandum. Larson was the Division Director of Vocational Adult Community Education and a member of Commissioner Castor's "Policy Group." He was aware of Castor's policy guidance not to reduce the number of Blacks in the process of downsizing the Department and in promoting Blacks at DOE. In the first week of October of 1993, Hall learned that her Bureau might have to leave five vacant positions unfilled and subject to elimination because of a legislative mandate. Not filling positions vacated by resignations and retirements was the primary means used to achieve the new manning levels of the Departmental reorganization. Hall analyzed her Bureau as to work-load issues, functions required, and expertise areas of remaining staff to insure that the Bureau's work could be covered with available personnel without laying anyone off. Hall's bureau was tasked to search out, apply and complete for Federal, state, and private grants, and to research new and merging issues in vocational education. No new personnel would be available to perform these new resource development duties. Hall's personnel review showed that Dr. Bert had worked 16 years in and was ultimately the Program Director of Research and Evaluation, which included resource development for 16 years. Dr. Bert had an extensive background, broad experience and considerable expertise in this area; and she was the only person in the Bureau with such experience. Hall's review also showed that Dr. Bouie had worked as a home economist for the Agricultural Extension Service, was a Junior and Senior High School home economics teacher, and was Chairperson of her Home Economics Department of her high school in Volusia County, Florida. Dr. Bouie also had a solid background in programs designed for the disadvantaged and the limited English proficient, together with programs administered through the Community Based Organizations Delivery System. She had developed a reputation for being a team player. Hall was of the opinion that this experience would be invaluable to the Bureau's Home Economics Section. The economic development and demographic trends in Florida resulted in the need for extensive restructuring and changes to the program offerings in each vocational area, to include Home Economics. Hall, at Larson's request, previously had asked Dr. Bert to look into changing the Home Economics curriculum. Dr. Bert refused, and Hall asked Shirley Lee, one of Dr. Bert's subordinates, to review the curriculum for change. Dr. Bert refused to allow Lee to conduct the project during normal working hours. Dr. Bert's refusal to consider changing the curriculum was, in Hall's opinion, an example of Dr. Bert's lack of receptiveness to change. In Hall's opinion, Dr. Bert was not the best person to initiate and develop those changes because Dr. Bert had, in the past, not been receptive to new initiatives for Home Economics. Larson was of the same opinion. Hall recommended to Larson that Dr. Bert be transferred to the new position of Program Specialist IV in Resource Development and that Dr. Bouie be placed in the Program Director I position. The decision to transfer Dr. Bert and Dr. Bouie to their new positions was jointly made by Hall and Larson based on Hall's review and recommendation. Both transfers were at the same pay grade. Thirty (30) such lateral transfers have been made due to reorganization in the Division over the last two years. Hall met with Dr. Bert on October 21, 1992 to notify and explain to Dr. Bert her pending transfer. Dr. Bouie was notified of the transfer on or about the same date. Dr. Bouie had not asked for and did not want to make the transfer. The fund-raising position into which Dr. Bert was transferred was a newly created position, having no support staff. Unlike her previous R & D position at DOE, Dr. Bert was given little or no assistance, met infrequently with Larson, and was given no extraordinary resources to perform the duties of her new job. Her transfer was a demotion. Dr. Bouie would retain certain duties she was already performing, as well as assuming those previously performed by Dr. Bert. Louis Davidson, the Health Occupations Program Director, and Loretta Costin, the Marketing Program Director, were also required to take on additional duties within the Bureau. Both Davidson and Costin are white. In late October, 1992, Dr. Bert learned from Dr. Mae Clemons that a group of Blacks at DOE had been communicating with Betty Castor, the Commissioner of Education, regarding the lack of Blacks in administrative positions given the number of Blacks with doctorate degrees. Dr. Clemons showed Dr. Bert an anonymous letter written sometime in 1992 to Betty Castor, containing the name of Blacks seeking promotions at DOE. Dr. Connie Hicks-Evans' and Dr. Bouie's names were two of the names listed in the anonymous letter to Commissioner Castor as having doctorates. Commissioner Castor called Dr. Hicks-Evans about the letter, and then faxed a copy to her. Dr. Hicks-Evans then called the meeting of Blacks holding doctorate degrees at DOE to discuss the issues and decide how to respond to Castor's inquiry. A group of black employees met in the DOE cafeteria to discuss informally the situation in October, 1992. Dr. Hicks- Evans discussed at the meeting the fact that Blacks were being denied promotions. Although this had not happened to her, it had happened to Rufus Ellis, James Scruggs and Baxter Wright. Dr. Bouie attended this meeting. She had never seen the anonymous letter before that meeting. Dr. Bouie believed that Blacks had applied for various positions and were not considered. She and other black employees wanted to find out what was happening in the Department. The subject of Dr. Bouie's transfer into Dr. Bert's position was not discussed at the group meeting. Dr. Bouie had not been told about her transfer at the time of the meeting. On November 2, 1992, Betty Castor met with a group of Blacks within DOE to discuss their concerns regarding promotions and other issues. The nine Blacks listed as "present" at the November 2 meeting were: Dorothy Bouie; Rufus Ellis, Jr.,; Connie Hicks-Evans; James A. Scruggs; Baxter Wright; Mae Clemons, Adeniji Odutola; Herb Parker; and Jean Williams. Dr. Bouie asserts she did not attend the November 2nd meeting with Commissioner Castor because she was sick that day. Her statement is deemed credible. Almost a year after the transfer was effective (December 21, 1992), the Program Director I position was upgraded to Program Director II, and Dr. Bouie's pay grade was increased from pay grade 25 to 27. Dr. Hicks-Evans did not know if any of the Blacks other than Dr. Bouie had been promoted at DOE since the anonymous letter was written and the meetings were held. Dr. Larson is the division Director of Vocational Adult Community Education which has four bureau. Two of the bureau chiefs are black (Leatricia Williams and John Lawrence), one is hispanic (Glenn Thomas), and the fourth is white (Pat Hall). Larson acknowledged that the decision to reassign Dr. Bouie into Dr. Bert's position and, subsequently, upgrading the position to promote Dr. Bouie, met the guidance of Castor regarding promotions for Blacks holding doctorate degrees; Dr. Bouie was not reassigned and promoted because of the Blacks' efforts in October and November, 1992. Larson was also aware of the 1992 movement by Blacks holding doctorate degrees, who were seeking promotions, prior to his decision to reassign Dr. Bert and place Dr. Bouie in Dr. Bert's position. There was never any pressure by the Commissioner on Dr. Larson to promoted Blacks because he had already met his EEO goals. The promotion of minorities at DOE was discussed quarterly as an issue related to performance appraisal and performance appraisals of all Division Directors at DOE by Castor. In July, 1992, Larson promoted a Black (Leatricia Williams) to one of his Bureau Chief jobs to replace another Black (Jim Barg). Although Dr. Larson could have reassigned Ann Rushing, a qualified white female, to the resource development position, he felt that Dr. Bouie was a better candidate for that position. Paulette Mainwood, Charlotte Gore, and Nancy Phelps were other qualified whites in the division whom Dr. Larson did not consider for the resource development position. Dr. Parker, a black male, has been DOE's Director of Administration for three years. He was promoted to the position by Castor and replaced by Larson, who was reassigned. Parker's job includes running the DOE's affirmative action program, and he attended the November 2, 1992 meeting with the other Blacks and Castor. The first informal group meeting of Blacks occurred about two weeks prior to the November 2, 1992 meeting with Castor. The anonymous letter had to have been sent before then. Parker met with all Division Directors regarding promotion of Blacks within the Department because he was the Chairman of the EEO Committee, and Betty Castor was concerned about promotion of minorities within the Department. The Department had goals established, and progress was discussed quarterly at executive steering committee meetings. Attainment of departmental affirmative action and EEO goals were not required by any law, according to Parker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Commission on Human Relations Commission enter its Final Order finding no cause regarding the Petitioner's complaint. DONE and ENTERED this 15th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5812 Both Parties submitted proposed findings of fact which were read and considered. The following states which of their findings were adopted, and which were rejected, and why: Petitioner's Proposed Order: Findings: Paragraph 1 Subsumed in 1 Paragraphs 2-7 Paragraphs 3-7 Paragraphs 8,9 Irrelevant Paragraphs 10, Subsumed in 7,8,9 11,12 Paragraph 13 Paragraph 22 Paragraph 14 Paragraph 10 Paragraph 15 True, but Bert was qualified as the resource person, and Bouie was qualified as the Home Economics Director. Paragraphs 16,17 Subsumed in 21-24 Paragraphs 18,19 Paragraphs 25,26 Paragraphs 20,21 Paragraph 32 Paragraphs 22,23 Paragraph 10 Paragraphs 24-27 Paragraphs 27-31 Paragraphs 28,29 Paragraphs 33,34 Paragraphs 30,31 Paragraphs 27,28 Paragraphs 32,33 Paragraphs 11, 15-18 Paragraph 34 Irrelevant Paragraph 35 Subsumed in 15-18 Paragraphs 36-44 Paragraphs 35-41 Paragraphs 45-51 Paragraphs 42-46 Respondent's Proposed Order: Findings: Paragraph 1 Paragraph 1,2 Paragraph 2 Paragraph 11 Paragraph 3-6 Paragraph 15-18 Paragraph 7 Paragraph 24 Paragraph 8 Paragraph 19 Paragraphs 9-11 Paragraphs 20-22 Paragraphs 12,13 Subsumed in 25-28 Paragraph 14 Irrelevant Paragraph 15 Paragraph 12 Paragraph 16 Paragraph 13 Paragraph 17 Irrelevant COPIES FURNISHED: Bruce A. Minnick, Esquire 660 East Jefferson Street Post Office Box 11127 Tallahassee, FL 32399-3127 William H. Roberts, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana C. Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether the Respondent, Alan T. Polite (Respondent), committed the violations alleged and should be disciplined as set forth in the Notice of Specific Charges filed on December 21, 2004.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of operating and supervising the public schools within the Miami-Dade County, Florida School District. Such responsibility includes the personnel matters such as the one at hand. At all times material to the allegations of this case, the Respondent was employed by the School District as a custodian assigned to work at Miami Park Elementary School. On or about December 11, 2003, the Respondent attended a staff meeting conducted at Miami Park Elementary School. At that time the Petitioner’s “Drug-Free Workplace Policy” was distributed and reviewed. The Respondent does not deny attending the meeting and does not dispute the existence of the Petitioner’s policy regarding drugs and alcohol in the workplace. On February 20, 2003, after the Respondent’s supervisor observed him behaving in an unusual manner, the Respondent was asked to submit to a drug and alcohol test. The Respondent was uncharacteristically disruptive, loud, and confrontational. When asked to take a drug/alcohol test, the Respondent refused unless the supervisor also agreed to submit himself for testing. The Respondent was called to the office and provided with the pertinent forms for drug/alcohol testing. The Respondent refused to acknowledge the forms, refused to sign the forms, and refused to submit himself to the testing. After the refusal was deemed a positive result, the Respondent was prohibited from returning to work until he complied with the return-to-duty requirements of the “Drug- Free Workplace Policy.” The procedures and directives followed the School District policy. On February 28, 2003, a conference-for-the-record (CFR) was conducted to address the refusal to take the drug/alcohol test. At that time the Respondent was given a referral to the Employee Assistance Program (EAP) and was informed that his progress and participation with the EAP would be monitored by the Petitioner’s Office of Professional Standards (OPS). The OPS is responsible for tracking employees so that the Petitioner can be assured that the “Drug-Free Workplace Policy” is being followed. On or about March 19, 2003, the Respondent entered the EAP. On April 10, 2003, the Respondent agreed to subject to unannounced testing for drug/alcohol use. For 60 months following his return to duty, the Respondent agreed to submit to testing on a random basis. It was anticipated that there would be no fewer than six screenings within the first 12 months. Based upon the foregoing, the Respondent was granted permission to return to work and did so on or about April 11, 2003. On June 8, 2004, the Respondent was selected for a random, unannounced follow-up test. The Respondent presented for testing at the prescribed location (an approved laboratory). The alcohol test administered to Respondent produced a positive result. The Respondent does not dispute the result of the test. The Respondent did not dispute that a consumption of alcohol caused the result. On June 22, 2004, another CFR was conducted in the OPS to review the test result with Respondent. At that time, based upon a complete review of the Respondent’s work record, the OPS recommended disciplinary action be taken against the Respondent for a second violation of the “Drug-Free Workplace Policy.” There is no allegation that the Respondent consumed alcohol while on the job at Miami Park Elementary School on June 8, 2004. There is no allegation that on June 8, 2004, the Respondent exhibited any outward sign that he was performing his duties under the influence of alcohol. The Respondent attends church at the Friendship Missionary Baptist Church. The Respondent makes meaningful contributions to the church and is perceived as a sober role model among the congregants. If the Respondent demonstrates he can remain sober for a period of five years, and show appropriate work history for that time frame, he may be eligible to be rehired by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be terminated from his employment with the School District. The suspension without pay must be sustained. S DONE AND ENTERED this 27th day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2005. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Pamela Young-Chance, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Alan T. Polite 827 Northwest 118 Street Miami, Florida 33168
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether the Respondent discriminated against the Petitioner for exercising her rights under Sections 760.01-760.011, Florida Statutes (2001), and, if so, the appropriate remedy.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Miami-Dade Community College is an employer within the meaning of the Florida Civil Rights Act, Sections 760.01- 760.011, Florida Statutes (2000). General Information In October 1998, Ms. Rodriguez was hired as Technical/Classified Staff at the Consolidated College Warehouse ("Warehouse") maintained by Miami-Dade Community College. At the times material to this proceeding, the main section of the Warehouse served as a storage facility for furniture and equipment that was no longer being used on the various campuses of Miami-Dade Community College. In another section of the Warehouse, called the "surge" section, furniture and equipment were stored temporarily, while portions of the campuses were undergoing renovations. Two employees were responsible for doing the manual labor in the Warehouse, which involved collecting furniture and equipment from the campuses, storing them in the Warehouse, and retrieving them when necessary. A third section of the Warehouse was devoted to collecting used computers that were being replaced on the various campuses of Miami-Dade Community College. There were four employees in this section of the Warehouse, including the head of the section, Maggie Zilliner. The old computers were collected from the campuses and logged into the property control system. The computers were sorted into those that worked, those that did not work but could be repaired, and those that could not be repaired. Two of the four employees were responsible for doing the computer repairs. The Warehouse also served as the site for storing records generated on the various campuses of Miami-Dade Community College. A large part of the work in this section consisted of maintaining a computer record containing the identification and location of the records stored in the facility. In addition, records were retrieved and provided to the campuses as requested, and documents were destroyed in accordance with state regulations. Frank Meistrell, who is now retired, was the Risk Manager for Miami-Dade Community College and was in charge of setting up and managing the Warehouse. He reported to Will Bailey, who was at the time the Director of the Budget for Miami-Dade Community College. The employees working in the Warehouse were, at the times relevant to this proceeding, part- time employees of Miami-Dade Community College with the exception of James Roof, who held a full-time position as the supervisor of operations for the Warehouse. Mr. Meistrell was Mr. Roof's direct supervisor, and he had recommended that Mr. Roof be promoted to the supervisor's position at the Warehouse. Mr. Meistrell and Mr. Roof had both worked for Miami-Dade Community College for many years, and, at one time, their offices were close to one another. The relationship between Mr. Meistrell and Mr. Roof was, however, strictly a business relationship; Mr. Meistrell did not know Mr. Roof socially and never interacted with Mr. Roof outside of the office. Mr. Meistrell may have gone to lunch with Mr. Roof one or two times over the years they worked together, and Mr. Meistrell may, on occasion, have shared a sandwich with Mr. Roof and other Warehouse staff. Ms. Rodriguez was initially hired in October 1998 as a part-time employee to work in general warehouse operations, when the Warehouse was just getting established. Ms. Rodriguez's only job experience prior to being hired to work at the Warehouse was as a leasing agent for an apartment building, a position she occupied from 1990 to 1999 and which involved some clerical duties. Once the Warehouse was somewhat organized, Ms. Rodriguez worked as a technician in the computer section, where she inventoried computers coming into the Warehouse and removed the software from the computers; Maggie Zilliner was her immediate supervisor in the computer section. In the fall of 1999, Ms. Rodriguez was asked to work with other Warehouse employees, under the supervision of Mr. Meistrell, to organize the layout of the records section of the Warehouse. After the records section became operational, and at the times material to this proceeding, Ms. Rodriguez worked in that section of the Warehouse. Mr. Roof was her immediate supervisor. Mr. Meistrell developed and distributed to the campuses a manual for handling records that was based on the state's record retention requirements. He obtained standardized boxes for the storage of records, and he developed a form to be used through Miami-Dade Community College to record the contents of each box. Personnel on the various campuses packed their records in the boxes and completed the form recording the contents of each of the boxes. One copy of the form was retained, one copy was put in each box, and one copy was taped to the top of the box. Warehouse employees collected the boxes from the campuses and delivered them to the Warehouse. The boxes were stacked on pallets, and the pallets were stored on racks in the Warehouse. A Miami-Dade Community College faculty member, Sally Musay, wrote a program for a database to keep track of the boxes of records stored in the warehouse. The program was written in English, and Ms. Rodriguez worked with the faculty member developing the program, which required entry of, among other items, the names of the Miami-Dade Community College employees whose records were stored in the Warehouse, the year in which each record was to be destroyed, and the location of the records in the Warehouse. In March 1999, Olga Mejia Morales ("Ms. Morales") was hired as a part-time employee in the Warehouse. Ms. Morales began working for Miami-Dade Community College in April 1996 as a student assistant in the Bursar's office at Miami-Dade Community College's north campus. Her duties included typing, filing, and answering the phone. In the spring of 1997, Ms. Morales moved to the property control section at Miami-Dade Community College's north campus, where she continued to work as a student assistant. Her duties in this position included filing, inputting data into the computer, typing, and answering the telephone. Ms. Morales worked at this position for two years before applying for the part-time position in the Warehouse. During the time she worked as a student assistant, Ms. Morales was attending Miami-Dade Community College, studying business software applications. When Ms. Morales came to work in the records section of the Warehouse, she was very familiar with computers and with various types of business software, such as Excel, Access, Power Point, and Microsoft Word. Ms. Rodriguez introduced Ms. Morales to the computer program developed by Ms. Musay to inventory the boxes of records sent from the various campuses to the Warehouse, although Ms. Morales was familiar with the type of program because it was a variation of the Access program. Because of her familiarity with the type of program used to keep track of the records, Ms. Morales was able to suggest to Ms. Musay some ways in which the program could be improved. Both Ms. Rodriguez and Ms. Morales input data into the computer regarding the records, although Ms. Morales was more proficient in using computers than Ms. Rodriguez as a result of her studies in business software applications. When requests for records were received from Miami- Dade Community College campuses, the location of the boxes of files to be retrieved would be obtained from the computer program, and either Ms. Rodriguez or Ms. Morales or another employee of the Warehouse would retrieve the boxes. Ms. Rodriguez was trained in the operation of a forklift and was certified to operate one. Ms. Rodriguez used a forklift to retrieve pallets on which the boxes of records were stored when the pallets were stored on one of the higher storage racks. Ms. Rodriguez also used a pallet jack to move pallets of boxes around the warehouse, and she would pick up and move individual boxes of records, which weighed 40 to 50 pounds. Ms. Morales was not an employee at the Warehouse when the forklift training was offered, and she did not know how to operate a forklift. She did, however, know how to use a pallet jack, and she used one routinely to move pallets of boxes around the warehouse. When pallets were stored on the second or third level, she often requested that Rafael Rodriguez, an employee who routinely operated a forklift in the Warehouse, retrieve pallets of records for her. Both Ms. Morales and Ms. Rodriguez prepared the boxes for delivery to the office requesting them. Before Ms. Morales began working in the records section, when the records storage and retrieval system was first implemented, Ms. Rodriguez would load boxes of records in her Jeep Cherokee and deliver them herself to the person requesting the files. Once the records section was better organized, a mail service picked up the boxes and delivered them to the persons requesting the records, and the mail service also returned the boxes of records to the Warehouse. In addition to her duties involving records storage and retrieval, Ms. Morales did typing and general office work for Ms. Zilliner and Mr. Roof, including answering the telephone. Ms. Rodriguez is fluent in both English and Spanish. Ms. Morales's first language is Spanish, but she began studying English in 1994. All of her courses at Miami-Dade Community College were taught in English, and Ms. Morales also took formal classes in English. At the times relevant to this proceeding, Ms. Morales could understand, speak, and read English; her command of spoken English has improved since September 2000. During the times relevant to this proceeding, when a telephone caller spoke only English, Ms. Morales would often ask another Warehouse employee to handle the call. She was, however, able to communicate adequately with Mr. Roof and Ms. Zilliner, and she had no trouble doing her work.3 Ms. Rodriguez's grievance In May 2000, Ms. Rodriguez filed a complaint against Mr. Roof, the supervisor of warehouse operations and her direct supervisor, with Dr. Joy Ruff, Miami-Dade Community College's Director of Employee Relations. The complaint was misplaced in Dr. Ruff's office, and, in July, 2000, when Dr. Ruff realized the error, she apologized and asked Ms. Rodriguez to re-file the complaint, which Ms. Rodriguez did on July 17, 2000. In her complaint, Ms. Rodriguez described several instances in which she believed Mr. Roof had acted inappropriately towards her, and she confirmed to Dr. Ruff that the basis for her complaint was discrimination on the basis of gender, specifically sexual harassment. Because he was Mr. Roof's supervisor, Dr. Ruff advised Mr. Meistrell that Ms. Rodriguez had filed the grievance. Mr. Meistrell told Dr. Ruff that he would make sure that Dr. Ruff had access to all the Warehouse employees for interviews and that the employees were paid for their time. Mr. Meistrell had no further involvement in the investigation of Ms. Rodriguez's complaint against Mr. Roof. During the course of her investigation, Dr. Ruff interviewed the employees who worked in the Warehouse. In their statements to Dr. Ruff, which were given on July 11, 12, 13, 24, and 28, 2000, several of the employees indicated that they had heard Mr. Roof make inappropriate comments to and about Ms. Rodriguez; three employees told Dr. Ruff that they had not observed Mr. Roof make inappropriate comments to or about Ms. Rodriguez, one of which was Ms. Morales. In addition to denying ever having heard Mr. Roof make any inappropriate comments to or about Ms. Rodriguez, Dr. Ruff's notes reflect that Ms. Morales commented during her interview that Ms. Rodriguez was a liar. This statement was not, however, related to the complaint Ms. Rodriguez had made against Mr. Roof; rather, Ms. Morales commented that Ms. Rodriguez lied about the hours she worked and about Maggie Zilliner, the head of the Warehouse's computer section. Specifically, Dr. Ruff's notes reflect that Ms. Morales commented that she "observed Janet coming in at 9 & leaving at 12, but tells people she's in at 8 & out at 4" and that she "sees Brian and Jorge (computer technicians) talking & talking & Maggie (Zilliner) only one working. Janet lies about Maggie & Maggie is a good woman." At some point during the investigation, Dr. Ruff suggested that Ms. Rodriguez work in the computer section of the Warehouse, at her original job, so that she would be directly supervised by Ms. Zilliner rather than Mr. Roof. Dr. Ruff completed her investigation in late July 2000, and she had a meeting with Mr. Meistrell, Mr. Roof's supervisor, on August 2, 2000, during which she advised Mr. Meistrell of her findings that Mr. Roof had made inappropriate comments to Ms. Rodriguez but that he had not engaged in discrimination based on sex. Dr. Ruff also told Mr. Meistrell that disciplinary action would be taken against Mr. Roof and that Mr. Roof would be required to write Ms. Rodriguez a letter of apology. Dr. Ruff met with Ms. Rodriguez on August 2, 2000, and Dr. Ruff discussed with her, in detail, the results of the investigation, including Dr. Ruff's conclusion that Mr. Roof had made inappropriate comments to Ms. Rodriguez. Dr. Ruff advised Ms. Rodriguez during the meeting that disciplinary action would be taken against Mr. Roof by Miami-Dade Community College and that he would be required to write her a letter of apology. Dr. Ruff also documented attempts to arrange a meeting with Mr. Roof on August 2, 2000, but Mr. Roof was not available. Dr. Ruff did, however, discuss the investigation and her conclusions with Mr. Roof in August 2000, while she was on vacation, and she advised him during the discussion that he would be subject to disciplinary action, that he would be required to write Ms. Rodriguez a letter of apology, and that he should begin drafting the letter of apology. After she returned from vacation, Dr. Ruff prepared a letter to Ms. Rodriguez dated September 1, 2000, in which Dr. Ruff formally advised Ms. Rodriguez that she had completed the investigation of Ms. Rodriguez's complaint against Mr. Roof and had concluded that Mr. Roof had made inappropriate comments to her in specific instances but that this behavior did not constitute discrimination based on sex. Dr. Ruff further advised Ms. Rodriguez in the letter that Mr. Roof would be disciplined for his behavior and that he would provide her with a written apology. On September 5, 2002, Dr. Ruff provided Mr. Meistrell with a draft of a formal letter of reprimand to be issued to Mr. Roof. Mr. Meistrell, as Mr. Roof's supervisor, incorporated the draft provided by Dr. Ruff into a memorandum of reprimand addressed to Mr. Roof and dated September 5, 2000. Dr. Ruff confirmed that Mr. Roof had received the written reprimand and that it had been included in his personnel file. The letter of complaint against Mr. Roof sent via facsimile to Dr. Ruff by Ms. Rodriguez on July 17, 2000, was not signed. A note dated August 14, 2000, that appears in the margin of Dr. Ruff's notes of her August 2, 2000, meeting with Ms. Rodriguez states: "Schedule mtg w/ Janet Rodriguez - signature on complaint." Decision to terminate Ms. Rodriguez In a memorandum dated July 26, 2000, Mr. Bailey, Mr. Meistrell's supervisor and Director of the Budget for Miami- Dade Community College, notified Mr. Meistrell that there was a shortfall in Miami-Dade Community College's operating budget for the 2000-2001 fiscal year of approximately $4 million, and he directed Mr. Meistrell to conduct his operations within the budget assigned to his areas of responsibility. The salaries for part-time employees at the Warehouse exceeded the amount budgeted for the 2000-2001 fiscal year by approximately $75,000. It was, therefore, necessary for Mr. Meistrell to reduce the staff at the Warehouse. Mr. Meistrell developed a plan for reducing the number of staff at the Warehouse, and he advised Mr. Bailey of the plan and of the corresponding reduction in the services that could be provided by the Warehouse. Mr. Bailey approved Mr. Meistrell's plan for staff reductions at the Warehouse, and Mr. Meistrell implemented the plan. Mr. Meistrell cut the program involving the repair of old computers, and the two part-time computer technicians who repaired the computers were terminated. Another employee of the computer section had recently quit, so three employees were cut from that section, leaving the supervisor of the computer section as the only employee. Mr. Meistrell decided that, for safety reasons, he could not reduce the staff doing the manual labor in the Warehouse from two employees to one. He, therefore, decided to reduce the staff of the records section of the Warehouse from two part-time employees to one. At the time, Ms. Morales and Ms. Rodriguez were the two part-time employees in the records section, and Mr. Meistrell decided to terminate Janet Rodriguez. Mr. Meistrell was solely responsible for choosing the individuals that would be terminated under the staff-reduction plan, and he did not consult with anyone at the Warehouse regarding who should be terminated. In making the decision to retain Ms. Morales and terminate Ms. Rodriguez, Mr. Meistrell concluded that Ms. Morales was better qualified than Ms. Rodriguez for the position in the records section, based on his consideration of the following factors: Mr. Meistrell believed that both Ms. Rodriguez and Ms. Morales understood the system for keeping track of the records stored at the Warehouse, and both had participated in the development of the program for keeping track of the records. Ms. Morales was first employed by Miami-Dade Community College as a student assistant in April 1996, and she worked as a student assistant until she accepted the part-time position at the Warehouse in March 1999. Mr. Meistrell believed that, during her employment with Miami-Dade Community College, Ms. Morales had acquired secretarial, administrative, and general office skills. She was, in addition, certified in business software applications. Mr. Meistrell believed that Ms. Morales would be a long-term employee, given her length of service with Miami-Dade Community College. Mr. Meistrell considered Ms. Rodriguez to be a good employee who knew a great deal about the operation of the records section of the Warehouse. He believed, however, that Ms. Rodriguez had very little experience in general office work, and he believed that, with her limited experience working at Miami-Dade Community College, Ms. Rodriguez was not as familiar with the source of the records and the operations of Miami-Dade Community College in general as Ms. Morales. Mr. Meistrell considered this lack of knowledge a drawback as the Warehouse received more and more records from the various Miami-Dade Community College campuses. In addition, Mr. Meistrell believed that Ms. Rodriguez would not be a long-term employee because she was attending college and was about to graduate with a bachelor's degree. In Mr. Meistrell's estimation, Ms. Rodriguez was not as proficient as Ms. Morales in inputting data into the computer and handling the paperwork relating to the records stored at the Warehouse, and he believed that Ms. Morales's administrative and organizational skills were superior to those of Ms. Rodriguez. Both Ms. Rodriguez and Ms. Morales did typing and filing for the computer section, but Mr. Meistrell believed that Ms. Morales was more proficient at this type of work than Ms. Rodriguez. In addition, because Ms. Morales was familiar with the property control system, Mr. Meistrell believed that she could also assist the computer section by handling the paperwork and inputting data relating to the old computers being sent to the Warehouse for the various Miami-Dade Community College campuses. Although Ms. Rodriguez was certified to use a forklift and Ms. Morales was not trained in the use of a forklift, Mr. Meistrell did not consider the use of a forklift to be a job requirement for those working in the records section of the Warehouse; usually, one of the employees of the furniture and equipment section of the Warehouse would retrieve pallets of boxes from the higher levels. Pallet jacks were then used to move the pallets of boxes around the Warehouse, and both Ms. Rodriguez and Ms. Morales knew how to use a pallet jack. Mr. Meistrell was aware that both Ms. Rodriguez and Ms. Morales were bilingual in Spanish and English. Mr. Meistrell was also aware that Ms. Rodriguez's command of spoken English was superior to that of Ms. Morales, but, in his opinion, Ms. Morales could communicate adequately in person or on the telephone with the staff in the Warehouse, including Mr. Roof and Ms. Zilliner, and with Miami-Dade Community College staff and others who spoke only English. In a memorandum dated September 6, 2002, Mr. Meistrell notified Mr. Roof, the head of warehouse operations; Ms. Zilliner, the head of the computer section of the Warehouse; and Rafael Rodriguez, the head of the storage section of the Warehouse, of the budget reduction and the decision he had made to reduce the number of staff in the Warehouse. Mr. Meistrell advised in the memorandum that, in addition to reducing the number of employees at the Warehouse, the maximum hours of the remaining Warehouse employees were restricted to 30 hours per week. Mr. Meistrell notified Ms. Rodriguez and the two employees from the computer section of their termination on September 6, 2000; he went to the Warehouse and gave the termination letters to each of the three employees. Ms. Rodriguez was advised that she would receive her salary through September 17, 2000. On September 6, 2000, after she was told of her termination and while she was packing up her belongings to leave the Warehouse, Ms. Rodriguez received a call from Dr. Ruff's office asking that she visit Dr. Ruff's office to sign some documents before she left. Ms. Rodriguez went to Dr. Ruff's office, where she signed and dated the complaint that she had sent to Dr. Ruff by facsimile on July 17, 2000. At this time, Dr. Ruff presented her with a letter of apology prepared by Mr. Roof and dated September 1, 2000. Computer records maintained by Miami-Dade Community College's indicate that Ms. Rodriguez was actually terminated from her employment on May 25, 2001. It was, however, Mr. Meistrell's practice to keep many terminated part-time staff on active status in the computer system, at no cost to the college, so that, if he needed a part-time employee to work for a couple of weeks, he could call and offer work to one of the people in the system without going through hiring formalities; because they were retained in the computer on active status, these employees could start working almost immediately. Ms. Rodriguez was one of the Warehouse employees that Mr. Meistrell kept on active status in the computer after her termination-in-fact. When he was told that he had too many people on active status in the computer, he cleaned out the records, and Ms. Rodriguez's was one of the records he took off of the computer. Ms. Rodriguez has not been employed since her termination from the Warehouse. Even though she has had interviews, Ms. Rodriguez believes that prospective employers lose interest in her when she explains that she has a pending sexual harassment complaint against Miami-Dade Community College. No one has been hired to fill the positions held by Ms. Rodriguez and the two employees from the computer section that were terminated on September 6, 2000. Summary Ms. Rodriguez presented evidence (1) that she filed a grievance against her supervisor, Mr. Roof, with Miami-Dade Community College in July 2000, charging that he had sexually harassed her in the workplace; (2) that she was terminated from her part-time employment with Miami-Dade Community College on September 6, 2000; and (3) that Mr. Meistrell was aware that she had filed a grievance against Mr. Roof and notified her of her termination less than two months after she filed the grievance, approximately one month after he was advised by Dr. Ruff that Mr. Roof would be reprimanded for making inappropriate comments to Ms. Rodriguez, one day after Mr. Meistrell prepared a memorandum of reprimand to Mr. Roof, and the same day Ms. Rodriguez was given Mr. Roof's letter of apology. Miami-Dade Community College in its turn produced evidence that, because of a reduction in the funds allocated for part-time salaries in Miami-Dade Community College's budget for Fiscal Year 2000-2001, Mr. Meistrell decided to re-organize the operations of the Warehouse and to cut the staff of the records section of the Warehouse from two employees to one employee. Miami-Dade County also produced evidence that Mr. Meistrell's decision to terminate Ms. Rodriguez rather than Ms. Morales was based on the length of Ms. Morales's employment with Miami-Dade Community College and his determination that Ms. Morales had more experience in general office work and was better qualified to carry out the duties of the remaining position in the records section than Ms. Rodriguez. Ms. Rodriguez's proof is insufficient to establish with the requisite degree of certainty that the reasons articulated by Mr. Meistrell were not the true reasons for her termination and that her filing a grievance against Mr. Roof was the true reason for her termination. Ms. Rodriguez did not dispute Mr. Meistrell's explanation that budget cuts required him to re-organize the Warehouse and reduce the staff of the records section to one part-time employee. Rather, Ms. Rodriguez claimed she was more qualified for the position than Ms. Morales; she implied that the removal of Ms. Rodriguez's position from Miami-Dade Community College's computer records on May 31, 2001, somehow undercut the credibility of Mr. Meistrell's explanation of the reasons for her termination; and she asserted that Ms. Morales strongly supported Mr. Roof when she was interviewed by Dr. Ruff during the investigation of Ms. Rodriguez's sexual harassment complaint. Ms. Rodriguez's perception that she was more qualified for the one remaining position in the records section of the Warehouse than Ms. Morales does not discredit the reasons given by Mr. Meistrell for his decision to terminate Ms. Rodriguez. Mr. Meistrell's explanation of the factors that he considered in reaching the decision to terminate Ms. Rodriguez rather than Ms. Morales establishes that he chose Ms. Morales based on his determination that she was more qualified for the position that Ms. Rodriguez, given his understanding of the duties that the person in the position would be required to perform and of the office skills and work experience of Ms. Morales and Ms. Rodriguez. Second, although the evidence supports the finding that Ms. Rodriguez's position was not removed from Miami-Dade Community College's computer files until May 25, 2001, Ms. Rodriguez does not dispute that she was terminated in fact on September 6, 2000, and she has failed either to establish that the deletion of her position from the computer records in May 2001 was more than a ministerial act or to explain how the delay in deleting her position from the computer records supports in any way her contention that she was terminated because she filed a claim of sexual harassment against Mr. Roof. Finally, Ms. Rodriguez presented no evidence tending to show that Mr. Meistrell knew the details of Ms. Morales's statement to Dr. Ruff regarding Ms. Rodriguez's sexual harassment complaint against Mr. Roof. Ms. Rodriguez has failed to produce proof sufficient to permit the inference that Mr. Meistrell intentionally discriminated against her when he decided to terminate her employment in the records section of the Miami-Dade Community College Warehouse. Not only did she fail to present sufficient evidence to discredit Mr. Meistrell's explanation of the reasons underlying his decision to terminate Ms. Rodriguez, she failed to establish that Mr. Meistrell's decision was influenced in any way by the fact that she filed a sexual harassment grievance against Mr. Roof. The evidence presented by Miami-Dade Community College is sufficient to establish that Mr. Meistrell did not have a close personal relationship with Mr. Roof, did not seek Mr. Roof's input regarding whether Ms. Rodriguez or Ms. Morales should be terminated or discuss the matter with him, and did not make Mr. Roof aware of his decision to terminate Ms. Rodriguez prior to September 6, 2000.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Janet Rodriguez. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003.
