Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
Findings Of Fact On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must possess either a welder's certificate or have at least one year's welding experience. Applicants for the position had to be certified as eligible prior to the date of their employment interview. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C. P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C. P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . . Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees). The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.
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 denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination. DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1983. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1983.
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Duval County School Board seeks to take disciplinary action against the Respondent based upon alleged violations announced in a Notice of Proposed Dismissal. In charge one Respondent is said to have been convicted of a felony involving moral turpitude, which is violative of Section 4(d) of the Duval County Teacher Tenure Act. A second charge accuses the Respondent of immoral character or conduct, in violation of Section 4(a) of the Duval County Teacher Tenure Act.
Findings Of Fact As alluded to in the statement of issues, the Duval County School Board has charged the Respondent with various violations of the Duval County Teacher Tenure Act. The notification of these charges is made through correspondence of November 12, 1987, from Herb A. Sang, Superintendent of the Duval County Public Schools. In particular, reference is made to a July 9, 1987 conviction in the case of the State of Florida vs. Lamar Leon Furlow in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 87-1402-CF, Division CR-A in which a jury found the Respondent guilty on July 9, 1987 of a lewd, lascivious, or indecent assault or act upon or in the presence of a child under sixteen years of age, a violation of Section 800.04, Florida Statutes. For this finding of guilt the court adjudicated the Respondent guilty and sentenced him to 7 1/2 years. In the face of this action by the court, the Duval County School Board through the superintendent made the assertion that this was a conviction of a felony involving moral turpitude as set forth in Section 4(d), of the Duval County Teacher Tenure Act. This constitutes charge one to the Notice of Proposed Dismissal. The second charge involving the claimed immoral character or conduct as contemplated in Section 4(a), of the Duval County Teacher Tenure Act deals with an allegation that, "on or about January 20, 1987, you unzipped the jeans of a 12 year old female student, placed your hand inside her panties and fondled her pubic area. This act occurred in a dark room at Eugene Butler School, Jacksonville, Duval, County, Florida." This allegation references the same factual events as were involved in the criminal court trial spoken to in charge one. It envisions the necessity of proof in substance of those same factual events through the hearing de novo in this administrative prosecution. In the face of these allegations, Respondent sought a formal hearing before the Division of Administrative Hearings which request was honored through the formal hearing conducted on May 9, 1988. Respondent is the holder of a Teacher's Certificate issued by the State of Florida, Department of Education. That number is 313977 and the certificate covers the area of industrial arts. In the academic year 1986-1987, Respondent taught as a graphic arts instructor at Eugene Butler Seventh Grade Center. His classroom assignment was number 63. Room 62, which is an adjacent room served as a work area for the graphic arts instruction. Adjoining room 62 were three smaller storage rooms and they connected to two darkrooms. A schematic drawing of these rooms is found as Petitioner's Exhibit 1. Brandy Lee Guetherman was born on February 10, 1974. In the school year 1986-1987 which commenced in the Fall of 1986, she attended Eugene Butler Seventh Grade Center. One of her courses in that year was graphic arts and it was taught by the Respondent. January 20, 1987 was the last day of the first semester of the academic year 1986-1987. On that date Brandy Guetherman was interested in signing a memento board which was on the desk of the Respondent. To this end she asked the Respondent if she could borrow a marker and he responded in the affirmative and told her to come with him to the storage room. Once in the storage room, the Respondent gave a marker to the student. He then asked her if he could "touch it," to which the student replied "touch what" and he then pointed to the left breast of the student and pinched it. The student then slapped his arm and told him that it hurt. The storage area as being described is one of the rooms depicted in Petitioner's Exhibit No. 1. Respondent then told the student to go sign the board and bring the marker back to him. At sometime in the course of these events, Respondent grabbed the students arm and hand and pulled it toward his penis. She jerked her hand away and went back to her seat in the classroom. After these events Respondent told the student to get a hall pass that would allow her to access the hall within the school. All of these events being described occurred during the regular sixth period class which runs from 3:00 p.m. to 3:55 p.m. The student Guetherman had not heard Respondent tell her to get the hall pass and this message was conveyed by Billy Payne another student. In furtherance of the instruction by the Respondent the student obtained a hall pass. Having obtained a hall pass Guetherman returned to the classroom area at a moment when the Respondent was going to one of the darkrooms. When the student approached the Respondent, he told her to go the restroom as if she were running an errand for the Respondent and then to come back and to go into the darkroom. She did as she was told. She went out of the room, down the hall and waited around in the hall area near the bathroom. She returned after about three minutes. She brought the hall pass with her into the darkroom area where the Respondent was and he told her to put the hall pass back on his desk and get the grade book and not to let anyone follow her back into the darkroom. She complied with the instructions and brought the grade book back to the darkroom. While in the process of getting the grade book another student came into the darkroom area and the Respondent told that female student to get out of the darkroom area. Once in the darkroom Brandy Guetherman gave the grade book to the Respondent. At that time, Respondent told the student that he was just messing around with some activities in the darkroom. He then asked the student Brandy Guetherman to unzip her pants and unbutton her pants but she did not respond. The Respondent reached over and unbuttoned the pants and unzipped them. Those pants worn by the student were jeans. Respondent then stuck his hand in between the students legs by placing his hand inside the panties that the student was wearing under the jeans. This arrangement was such that the flesh of the Respondent's hand touched the flesh of the student in her vaginal area. He felt around in her vaginal area but did not, according to the student's explanation, penetrate by going "all the way in." During this assault the student was touched by the Respondent's fingers in her vaginal area. By the student's explanation he moved his hand around in a circle and back and forth. This transpired over a period of a couple of minutes. During the course of these events Respondent asked the student if she knew that he had big hands and she shook her head in the affirmative. He told her that it was warm down there. When he had stopped the assault the student zipped and buttoned her pants and left the darkroom area. Before leaving Respondent told her to come back the next day after her homeroom period and come straight to his class and to wear a dress or skirt. Altogether the student was in the darkroom with the Respondent for a period of fifteen minutes. When Guetherman returned to the classroom she told her friend Billy Payne of what had transpired and another student Carl Miller was told about the events involving the Respondent while riding home on the school bus on January 20, 1987. This incident with the respondent disturbed Brandy Guetherman and it was noticed in its effect by Billy Payne. When Guetherman returned home on the date in question she told her mother about the incident who in turn contacted officials at the Eugene Butler Seventh Grade Center. On the next day Brandy Guetherman's father took her to the school and met with school officials about this matter. Respondent is a person 6 feet 2 inches tall and weights 315 pounds, an imposing figure for a young female student to have to contend with. The events described concerning Brandy Guetherman formed the basis of the finding of guilt and the adjudication against the Respondent for this sexual battery under Section 800.04, Florida Statutes, as previously discussed. That conviction is on appeal together with the conviction pertaining to another student for offenses against that student Elizabeth Haygood. As a result of the accusations placed against the Respondent he was removed as a classroom teacher.
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
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 Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 28th day of December, 2018.
