The Issue Whether the Respondent discriminated against the Petitioner in his employment on the basis of race and disability and/or retaliated against the Petitioner for exercising his rights under Sections 760.01-760.011, Florida Statutes (1999), 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: Mr. Hicks is an African-American. He was employed by Metro Dade Transit from approximately 1993 until May 13, 1999. During his employment, he worked in the Revenue Department as a Transit Revenue Collector. When Mr. Hicks first began working for Metro Dade Transit, he was assigned to work the night shift as a truck driver. He was responsible for going to different bus yards and either pulling cash boxes from the buses or reading the numbers on the bus's turnstiles and comparing those to the numbers on the cash boxes. In or around 1995, Mr. Hicks was assigned to the bus yard identified as Northeast 2. His job was to remove the cash boxes from the buses that came into the yard and to replace the full boxes with empty ones. He would then empty the cash boxes through a machine that would drop the money into the safe. In or around 1997, Mr. Hicks returned to his former assignment driving a truck to different bus yards. He worked the second shift and visited three different bus yards, where he would give each revenue collector assigned to the bus yards a 30-minute break during the rush hours. Terry Simonson, a Transit Revenue Collections Supervisor 2, hired Mr. Hicks as a revenue collector for Miami Dade Transit in 1993. Yfrahin Rodriguez was a Transit Revenue Collections Supervisor 1 from 1993 until May 1998, when he left his position to become a code enforcement officer for Miami-Dade County Team Metro. Mr. Hicks's employment with Metro Dade Transit terminated on May 13, 1999, for reasons that will be discussed below. Mr. Hicks received satisfactory employment evaluations for 1995, 1996, and 1997, and he was given merit salary increases in 1996, 1997, and 1998.6 In his evaluations for 1995 and 1996, which were completed by his then-supervisor Curtis Fullington in January 1996 and January 1997, respectively, Mr. Hicks was described as an employee who "cooperates reluctantly at times" and who "disregards some rules and procedures." In his evaluation for 1997, which was completed in January 1998 by Mr. Rodriguez, Mr. Hicks was described as an employee who "reluctantly cooperates with his peers, and has trouble accepting advice and counseling with his supervisors" and who "disregards some departmental rules and policies." In addition, several supervisors reported to Mr. Simonson that Mr. Hicks was "a little difficult" to deal with. Mr. Rodriguez was very professional in carrying out his duties as a supervisor and treated all of the employees he supervised, including African-American employees, fairly and with respect. Frantz Benoit, Douglas Fahie, Antomic Augustin, Darryl Clodfelter, and Greg West are current and former Miami Dade Transit Revenue Collectors who were supervised by Mr. Rodriguez and worked with Mr. Hicks. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. West are African-Americans. Mr. Rodriguez always acted very professionally in his dealings with Mr. Benoit, Mr. Fahie, and Mr. Augustin as their supervisor, and Mr. Rodriguez treated them fairly and with respect. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. Clodfelter did not ever observe Mr. Rodriguez treat Mr. Hicks with disrespect or in a derogatory manner, and none of these individuals ever heard Mr. Rodriguez call Mr. Hicks "boy" or harass him. Mr. Rodriguez and Mr. Hicks were involved in several confrontations over the years. Mr. Benoit observed Mr. Rodriguez and Mr. Hicks in a "heated discussion" at one time. Mr. Augustin observed Mr. Rodriguez and Mr. Hicks get into a "verbal confrontation" in May 1997, when Mr. Rodriguez asked Mr. Hicks a question related to Mr. Hicks's job; Mr. Augustin observed Mr. Hicks use profanity during the confrontation. Mr. Clodfelter observed an "exchange" between Mr. Rodriguez and Mr. Hicks when Mr. Rodriguez introduced Mr. Hicks to a new duty log that he wanted all the revenue collectors working as "UT-2's" to complete. Mr. Rodriguez gave both Mr. Hicks and Mr. Clodfelter a duty-log form that required entry of the time the employee arrived at a particular bus yard and the time the employee left the bus yard.7 Mr. Clodfelter discerned from the exchange between Mr. Hicks and Mr. Rodriguez that Mr. Hicks misunderstood the nature of the duty log and believed he was being singled out and was the only revenue collector required to complete the duty log. Mr. Clodfelter described Mr. Hicks as "very upset" and observed Mr. Hicks tell Mr. Rodriguez he would not complete the duty log. Mr. West is an African-American who worked as a Miami Dade Transit Revenue Collector from 1985 until he was terminated in 1997. Mr. West believes that Mr. Rodriguez harassed both him and Mr. Hicks because they spoke out about things they thought were wrong with Miami Dade Transit. Mr. Simonson was Mr. Rodriguez's supervisor during the time that Mr. Rodriguez was a Transit Revenue Collections Supervisor 1. Mr. Hicks complained to Mr. Simonson several times that he believed Mr. Rodriguez was harassing him, although Mr. Hicks never told Mr. Simonson that Mr. Rodriguez was making remarks to him related to his race. As a result of Mr. Hicks's complaints, Mr. Simonson met several times with Mr. Rodriguez and Mr. Hicks to discuss the difficulties they had working with one another. In Mr. Simonson's opinion, Mr. Rodriguez and Mr. Hicks had problems working together because Mr. Hicks gave Mr. Rodriguez "a hard time." At the end of each of the meetings, however, Mr. Rodriguez and Mr. Hicks shook hands and agreed to try to work together amicably. One of these meetings between Mr. Simonson, Mr. Rodriguez, and Mr. Hicks was also attended by Othan Gilbert, who was at the time the manager of Treasury Services for Miami Dade Transit and Mr. Simonson's supervisor. Neither Mr. Simonson nor Mr. Gilbert recalls Mr. Hicks saying anything about Mr. Rodriguez telling Mr. Hicks that all Blacks do is complain or that he was going to get rid of Mr. Hicks. Events leading to Mr. Hicks's termination. In 1998 and 1999, Omar Yoda was a Transit Revenue Processing Supervisor 1; Mr. Yoda did not supervise Mr. Hicks because the revenue processing section is distinct from the revenue collections section. In late December 1998 or early January 1999, Mr. Hicks approached Mr. Yoda and told Mr. Yoda that he had a job at the post office lined up and that he wanted to use up his accrued sick leave before he quit his job with Miami Dade Transit. Mr. Yoda told Mr. Hicks that he could not work another job while he was out on sick leave because it was not permitted by Miami Dade Transit's rules. Mr. Hicks protested that other employees were allowed to use their sick leave in this way. Mr. Hicks did not tell Mr. Yoda that he was sick or that he needed to be placed in a light duty assignment. On January 5, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated January 4, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would be able to return to work on February 11, 1999. No diagnosis was included on the certificate. On March 1, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated March 1, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would not be able to return to work until April 9, 1999. No diagnosis was included on the certificate. Mr. Hicks submitted Requests for Leave for the periods extending from January 1 through 9, 1999; January 12 through 23, 1999; January 26 through February 6, 1999; February 9 through 21, 1999; February 24 through March 7, 1999, and March 8 through 17, 1999. Mr. Hicks claimed that he went on sick leave because he was under a lot of stress and had an abnormal heartbeat.8 Mr. Hicks never told Mr. Simonson that he was disabled, however, nor did Mr. Hicks provide Mr. Simonson with any medical documentation to support the requests for sick leave and the certificates Mr. Hicks submitted from his doctor. Mr. Hicks did, however, ask Mr. Simonson the procedure for requesting a light duty assignment; Mr. Simonson referred him to the Human Resources Department, but heard nothing more about a light duty assignment for Mr. Hicks. Mr. Hicks never told Mr. Rodriguez that he was disabled or requested a light duty assignment or any other accommodation.9 While he was out on sick leave, Mr. Hicks's supervisors received word that Mr. Hicks was working at another job. An investigation was initiated, and an employment verification inquiry was made to the United States Postal Service. The United States Postal Service provided Metro Dade Transit with an employment verification form referencing March 26, 1999, as the date of the request; the document confirmed that Mr. Hicks had been employed as a United States Postal Service career employee since January 16, 1999, with a base salary of $23,893.00 per year. Mr. Hicks worked at the Pembroke Pines Post Office in Broward County, Florida, as a custodian. He swept the floors and cleaned the restroom. Mr. Simonson prepared a formal Disciplinary Action Report dated March 30, 1999, detailing the results of the investigation into allegations that Mr. Hicks was working for the United States Postal Service during the time he was on sick leave from his job with Metro Dade Transit. Mr. Hicks was placed on administrative leave on March 19, 1999.10 The results of the investigation were discussed with Mr. Hicks at a disciplinary hearing that was held on April 23, 1999. In a letter dated April 27, 1999, Othan Gilbert, then the Manager of Treasury Services for Metro Dade Transit and Mr. Simonson's supervisor, advised Mr. Hicks that, after a management review of the circumstances detailed in the Disciplinary Action Report dated March 30, 1999, the decision had been made to recommend that he be terminated as an employee of Metro Dade Transit. Mr. Hicks was terminated from his employment with Miami Dade Transit effective May 13, 1999. Mr. Hicks was also terminated from his position with the United States Postal Service. Mr. Hicks filed his Charge of Discrimination with the FCHR on May 17, 1999, and the date on this document, handwritten next to Mr. Hicks's signature, was May 7, 1999. Mr. Hicks appealed the decision to terminate his employment with Metro Dade Transit, and at the final hearing on the appeal, Mr. Hicks entered into a stipulation with Miami-Dade County whereby he agreed to resign in lieu of being terminated and to withdraw a pending appeal of five-day suspension imposed in January 1998.11 Incidents Mr. Hicks considers discriminatory. Mr. Hicks complained that, when he was placed on administrative leave in late March 1999, Mr. Gilbert ordered him, "with a nasty attitude,"12 to turn in his badge at the Government Center. This required Mr. Hicks to drive all the way downtown, when, according to Mr. Hicks, he could have turned in his keys at the Northeast Bus Yard, which would have been more convenient for Mr. Hicks. Mr. Hicks also complained that Mr. Gilbert gave him an order to go directly home after he turned in his badge. Mr. Hicks interpreted this to mean that Mr. Gilbert had ordered him not to stop on the way home. Mr. Hicks complained that, as a result of Mr. Gilbert's order, Mr. Hicks was unable to stop to use the bathroom on the way to his house. Mr. Hicks also testified to a number of incidents that allegedly occurred in 1995, 1996, 1997, and early 1998, that he believes constituted harassment and created a hostile work environment: In January 1995, Mr. Hicks had an accident with a county vehicle and damaged the top of a truck he was driving to collect change machines from buses. Mr. Hicks reported the damage, but he received a record of counseling, which he thinks was a little extreme under the circumstances. On July 18, 1996, a computer technician went to the Northeast Bus Yard where Mr. Hicks was working; the computer technician shut down the computers so he could work on them. As a result, Mr. Hicks could not empty the fare boxes on the buses that came into the yard, so the buses left the yard with full fare boxes. Mr. Hicks feels aggrieved because Mr. Rodriguez wrote a memorandum dated July 19, 1996, to Mr. Simonson complaining of continuous problems at the Northeast Bus Yard and mentioning Mr. Hicks's failure to do his job as one cause of the problems.13 Mr. Hicks perceives this accusation as a great injustice because he worked the second shift, which was the hardest shift; he chose the hardest shift because he was "into the physical thing because I like to work hard."14 On February 19, 1997, Mr. Rodriguez walked over to him at the Northeast Bus Yard with a "silly grin" on his face and called Mr. Hicks "boy"; told Mr. Hicks he was tired of Mr. Hicks questioning him every time he gave him an order; told Mr. Hicks that "all you Black revenue collectors" do is complain, especially Mr. Hicks; and told Mr. Hicks that he was going to do his best to get Mr. Hicks fired. Mr. Rodriguez denied having made any of these statements. In May 1997, Mr. Hicks called to report that he was sick. Mr. Hicks spoke with a fellow employee, and asked him to give the message to the supervisor that he was taking a sick day. Mr. Rodriguez caused Mr. Hicks's pay to be docked for eight hours' work and told him that employees were supposed to speak with a supervisor when calling in sick. Mr. Hicks questioned Mr. Rodriguez's action and Mr. Rodriguez "got very, very nasty and we got into a yelling match."15 Although Mr. Hicks acknowledged that Mr. Rodriguez might be correct about the rule, Mr. Hicks knew of other employees who just gave a co- worker a message and were not docked any pay. Mr. Hicks claims that, before docking his pay, Metro Dade Transit should have sent around a memo stating the rule about reporting sick to a supervisor.16 In May 1997, Mr. Hicks heard rumors that "they" were going to fire him because he, or his attorney, filed a complaint with the Equal Employment Opportunity Commission.17 When he confronted Mr. Gilbert about the rumors, Mr. Gilbert claimed he did not know anything about it. On June 3, 1997, Mr. Hicks was not able to take a lunch break because it was impossible for him to keep the schedule that Mr. Rodriguez had established. On June 6, 1997, Mr. Hicks forgot to turn in his keys to a county vehicle, and they made a "big statement about it" being against the rules even though they never made a "big statement" when someone else forgot to turn in their keys.18 On June 6, 1997, Mr. Hicks perceived that things had gotten so bad on the job that he went to the Employee Assistance Program for help. He was so stressed that, for about six months, he did not report for work on weekends. Mr. Hicks claims he missed these days of work to avoid Mr. Rodriguez when neither Mr. Simonson nor Mr. Gilbert was working and could not witness what Mr. Rodriguez was doing to him. On June 18, 1997, Mr. Hicks was at the Central Bus Yard, where he was supposed to work from 7:30 p.m. to 9:00 p.m. At around 8:00 p.m., Mr. Rodriguez drove up, and Mr. Hicks asked Mr. Rodriguez if he had to stay at the bus yard until 9:00 p.m. Mr. Rodriguez told him that "all you Blacks do is complain" and that he would fire all "you people" if it was up to him. Mr. Rodriguez denied having made these statements.19 On December 31 of every year, Metro Dade Transit forced employees to work emergency overtime. Mr. Hicks, along with a number of other employees, was forced to work a 10-hour shift on December 31, 1997, when he was only supposed to work eight hours. Mr. Hicks always questioned the supervisor about this emergency overtime because he believed that only the county manager could call for emergency overtime and then only for an act of God. On January 20, 1998, Mr. Hicks was forced to "work out of class" when he was told to log buses into the computer. Mr. Hicks claims his job description did not include this type of work. Mr. Rodriguez and "a couple of other guys" prepared written statements attesting that Mr. Hicks threatened to kick Mr. Rodriguez's "posterior" during an altercation between Mr. Rodriguez and Mr. Hicks. Mr. Hicks denies having threatened Mr. Rodriguez on this occasion.20 Mr. Hicks called in sick for one day, and he was required to bring a doctor's letter even though the union contract provided that an employee did not need a doctor's letter unless taking three days' sick leave.21 During the time that he was assigned to Government Center, Mr. Rodriguez harassed him by ordering him to do assignments that no other truck driver would normally do. Mr. Hicks considered Mr. Rodriguez's harassment so serious that he went to the doctor, and he claimed that he was told he had developed ulcers. He also went to the Miami-Dade County Employee Assistance Program for help because he believed that his supervisors did not pay attention to him; Mr. Hicks went to a psychiatrist at the recommendation of a counselor at the Employee Assistance Program.22 Summary Mr. Hicks failed to present persuasive evidence that Mr. Rodriguez or anyone employed by Metro Dade Transit more likely than not harassed him or created a hostile work environment because Mr. Hicks is an African-American. It is apparent from the evidence presented by both Metro Dade Transit and Mr. Hicks that Mr. Hicks routinely questioned Mr. Rodriguez's authority to direct his activities on the job and that he sometimes responded to Mr. Rodriguez in a belligerent and defiant manner. This behavior by Mr. Hicks, rather than his race, was the cause of the friction between Mr. Rodriguez and Mr. Hicks. Mr. Hicks's attribution of racist remarks to Mr. Rodriguez is rejected as not credible given the testimony of three African-American employees of Metro Dade Transit that Mr. Rodriguez always treated them fairly and with respect. Even assuming that the various incidents that Mr. Hicks claims were discriminatory and tended to create a hostile work environment happened as Mr. Hicks described, the incidents were unrelated to Mr. Hicks's race; were, for the most part, simply the complaints of a disgruntled employee; and were not so severe or pervasive that the conditions of Mr. Hicks's employment were altered. Mr. Hicks failed to present persuasive evidence to establish that Metro Dade Transit more likely than not discriminated against him on the basis of handicap. Mr. Hicks provided no proof that he was either mentally or physically handicapped. Furthermore, even if Mr. Hicks had established that he was handicapped, the persuasive evidence establishes that the only accommodation he requested was extended sick leave from January through mid-March 1999, during which time he worked for the United States Postal Service. His termination was unrelated to any real or perceived handicap but was, rather, the result of his abuse of Metro Dade Transit's sick leave policy. Mr. Hicks failed to present any evidence that he was more likely than not the victim of retaliation by Metro Dade Transit. The only discrimination complaint that Mr. Hicks filed against Metro Dade Transit was signed and dated by Mr. Hicks after he learned that Mr. Gilbert was recommending that he be terminated, and the complaint was filed with the FCHR after Mr. Hicks was terminated from his employment. Mr. Hicks presented no evidence that Miami Dade Transit even had notice that he intended to file a discrimination complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Eugene Hicks against Treasure Service/Metro Dade Transit and Ron Jones. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S 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 1st day of August, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent certify petitioner Metro Signal Company, Inc. as a duly qualified Woman Business Enterprise. RECOMMENDED this 20th day of July, 1984, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1984.
Findings Of Fact Respondent is a certified roofing contractor having been issued license number RC0021181. His address as stated at the June 30, 1982, hearing is 11360 SW 47th Terrace, Miami, Florida 33165. On or about August 2, 1976, Mildred Buckaloo contracted with Respondent, who was then doing business as Roddy Roofing Company, to re-roof her residence in Miami. Respondent completed the job with some agreed changes in the contract. The customer was not satisfied with the job and Respondent returned in September to reinstall lead flashing and replace a facia board. Ms. Buckaloo subsequently complained that the roof leaked, and accused Respondent of improper sexual advances. Respondent agreed to return to the job site, but sought to be accompanied by a third person. This was never arranged and Ms. Buckaloo's death apparently resulted in the dispute remaining unresolved. Respondent admitted that he failed to obtain a building permit for the Buckaloo job as required by Section 301.1(k), Metropolitan Dade County Code. Respondent claims that although he has no documents, he did obtain the project inspection required by Section 201.1(3)(b) of this Code. In this regard, Respondent stated that he ran into Dade County building inspector Gene Kirby in a restaurant and got Kirby to come to the job site and make the inspection. Building inspector Kirby testified at the second hearing and denies making the inspection. He did not know Respondent in 1976 but believes he first met him around 1980. Due to the long period of time which has elapsed since the alleged inspection, it cannot be found that either witness lied. However, the absence of any record to document the inspection indicated that it was not performed.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter its Final Order suspending Respondent's roofing contractor's license for a period of six months. DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 1st day of October, 1982.
Findings Of Fact The petitions herein were filed by Petitioner with PERC on June 16, 1975. (Hearing Officer's Exhibits 1 and 2). The final hearing was scheduled to be conducted on September 17, 1975, by Notice dated August 26, 1975. (Hearing Officer's Exhibit 3). The Intervenor filed a petition with the Public Employees Relations Commission on June 26, 1975. (Hearing Officer's Exhibit 6). The Intervenor's petition was dismissed by the Chairman of PERC on August 6, 1975. The Motion to Intervene was filed with PERC on September 8, 1975. (Hearing Officer's Exhibit 8). The School Board of Broward County is a Public Employer within the meaning of Florida Statutes Section 447.002(2). (Stipulation, TR, vol. I, pp. 13, 14). The Petitioner is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). The Intervenor is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). There is no contract bar to holding an election in this case. (Stipulation, TR, vol I, p. 15). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 5). Intervenor offered approximately 88 signed statements into evidence at the hearing as Intervenor's Exhibit 5. The statements express the signers' desire to resign from membership in the Petitioner. The statements were not accompanied by any testimony or other evidence with respect to their authenticity, and they were not, therefore, received in evidence. No additional evidence was offered at the hearing to rebut the administrative determination previously made by PERC respecting Petitioner's showing of interest. PERC has previously determined that the Intervenor is a duly registered employee organization. (Hearing Officer's Exhibit 7). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. In order to make a proper showing of interest in support of its Motion to Intervene, Intervenor offered authorization cards which had previously been forwarded to PERC in Case No. 8H-RC-754-2177, and which were not found by PERC to be stale and untimely. Intervenor offered additional authorization cards at the hearing, which cards have been forwarded to PERC by the undersigned. At the time of the hearing no administrative determination had been made by PERC with respect to the Intervenor's showing of interest. No evidence was offered at the hearing to rebut such an administrative determination in the event that one is made. The Broward Educational Secretaries Association is an employee organization which is seeking to represent a unit of clerical personnel employed by the Public Employer. Petitioner and Intervenor are not seeking to represent the same employees which the Broward Educational Secretaries Association is seeking to represent except that the Intervenor wishes to include employees in the Purchasing and Warehousing Departments in the unit in this case. The International Union of Operating Engineers, Local 675; the Plumbers and Pipe Fitters, Local Union 719; the International Brotherhood of Electrical Workers, Local 728; and the Air Conditioning Local 725, are building trades unions which are seeking to represent employees of the Public Employer who perform building trades labor. At the time that the hearing was held none of these organizations had filed any petition with PERC seeking to represent employees of the Public Employer, and no motions to intervene were made at the hearing. The organizations had joined to form a new organization, the Broward County Public Employees Maintenance Committee. This new organization had registered with PERC, and is actively seeking to represent employees of the Public Employer. The new organization had not filed any petition with PERC, and made no motion to intervene at the hearing. The Petitioner, the Intervenor, and the Public Employer agree that the appropriate collective bargaining unit would include the following employees: Bus Drivers, Bus Driver Aides, Substitute Bus Drivers and Aides, Mail Service Employees, Garage Employees, Assistant Head Custodians, and Head Custodians, Warehousemen and Maintenance Men, except that there is a disagreement as to whether tradesmen should be included. The parties agree that the following employees should be excluded: all instructional personnel, and confidential and managerial employees. The functions of the School Board of Broward County are divided both functionally and geographically. The School Board of Broward County serves as the legislative body of the Broward County School System. The superintendent is the Chief Executive Officer. The central school board office is divided into four primary departments: Instructional Services, headed by a Program Superintendent for Instruction and a Program Director; Business Services, headed by a Program Director; Operational Services, headed by a Program Director, and Personnel Services, headed by a Director. Many school board functions are administered on a decentralized basis in four geographic areas. Each of the schools within the Broward County system fall within one of the areas. The principal of each school is charged with the responsibility for administering both instructional and non-instructional functions at the school. Each geographic area performs support functions for the schools. Four departments have been established in each area to perform the support functions. These departments are headed by a Curriculum Analyst, a Business Analyst, a Supervisor of Maintenance and Operations, and a Supervisor of Transportation. Employees involved in this case are employed in the Central Operational Services Department, in the purchasing and warehousing office of the Central Business Services Department, in the area Maintenance and Operations and Transportation Departments, and at the individual schools. There are five departments within Operational Services. The School Facilities Department is headed by a Director. This department is responsible for planning the construction of new schools or additions to already existing schools. Personnel in the department serve as a liaison between educational personnel and the school board architects. Once a project is approved by the School Board and the State, and has been contracted, the School Facilities Department supervises construction. The Minor Capital Outlay Department is headed by a Coordinator. The Coordinator prepares the budget for the Department, assigns duties, and coordinates the activities of the Department with maintenance personnel in the areas. When area maintenance personnel have special problems that cannot be handled in the ordinary course of their work day, the area supervisor from Maintenance and Operations will request assistance from Minor Capital Outlay. Five supervisors work under the Coordinator. The Plumbing Supervisor is responsible for seeing that supplies are furnished, determining what jobs need to be performed, assigning personnel to the jobs, and seeing that all jobs are accomplished. The Plumbing Supervisor submits a proposed budget to the Coordinator, coordinates purchases with area supervisors, and serve as the first step in the grievance procedure. The Electrical Supervisor, Custodial Services Supervisor, Portable Classroom Supervisor, and Painting Supervisor have the same duties and responsibilities as the Plumbing Supervisor within their respective realms. Functions performed by the Minor Capital Outlay Department which are not supervised in the `foregoing manner are supervised by foremen or leadmen. These personnel answer directly to the Coordinator. They are responsible for submitting budget information to the Coordinator, serve as the first step in the grievance procedure, and coordinate purchases with area supervisors. The Auxiliary Services Department, which is headed by a Director, covers the garage, transportation, and mailroom. The garage is responsible for maintaining buses and all school board vehicles. The Garage Coordinator is responsible for supervising activities at the garage. A Body and Paint Foreman, a Shop Foreman, and Day and Night Shift Mechanic Foremen answer to the Garage Coordinator. These foremen are working foremen. The Transportation Division is headed by a Coordinator. The Central Transportation office coordinates with transportation offices in each area. Area Transportation Supervisors work out bus routes for the individual schools based upon information submitted by the school principals. The central office coordinates with the area offices to assist in routing of buses. Bus drivers answer to the Area Transportation Supervisors, and to the Principals at the individual schools. The primary function of the Central Transportation Office is to coordinate activities of the Area Transportation offices. The mailroom provides intra-school mail service. The mailroom is headed by a mailroom specialist. The Pupil Accounting and Sight Planning Department is responsible for maintaining demographic records of the county, in order to determine where future schools should be built, and when they should be built. The department coordinates the acquisition of school sites. The department consists of a Director, two secretaries and three clerk typists. The Safety Department was previously a division of the Auxiliary Services Department. It is now a separate department under Operational Services. The Department consists of a Coordinator and two Inspectors. These personnel are certified by the State Department of Education to make health and safety inspections of the school facilities. In the event of an accident, these personnel would make an investigation and report. Such an investigation might result in disciplinary action being taken against other employees. A part of the Safety Inspector's function might be to testify at grievance hearings relating to accidents. These employees would be eligible for membership in the Petitioner, but the Constitution of Petitioner would not permit the employees to file reports that might cause disciplinary action to be taken against another member of the Petitioner. Each area is headed by an Area Superintendent. The Area Superintendent is responsible for both instructional and non-instructional matters within the area. School principals answer to the Area Superintendent. The Supervisor of Maintenance and Operations, and the Supervisor of Transportation for each area also answer to the Area Superintendent. There is no intermediate management in the non-instructional divisions of the areas. Various functional divisions of the Maintenance and Operations Departments may have working foremen which generally direct the activities of the crews. There is, for example, a small mower foreman in each area. Employees in the areas receive the same salaries and benefits, and work the same hours as the employees in the central office. A journeyman electrician assigned to the Maintenance and Operations Department of an area would receive the same employment benefits as a journeyman electrician assigned to the Minor Capital Outlay Department of Operational Services in the central office. School principals are in charge of both instructional and non- instructional matters at the schools. The principal is responsible for hiring and firing the school's custodians and on-site repairmen. The on-site repairmen will coordinate their activities with the area maintenance and operations office, but they will nonetheless answer to the principals. Head custodians provide principals with information respecting monetary needs, but they play no other budget role. Head custodians play no policy or collective bargaining role. Head custodians do serve as the initial step in the grievance procedure. Some of the principals in the school system place strong reliance upon their head custodians; others do not. Some principals assign the head custodians the responsibility of interviewing prospective employees, and such principals rely upon the head custodian's recommendations respecting hiring, firing, promotion, and vacations. Head custodians generally perform the same functions as other custodians, in addition to their supervisory functions. Head custodians will open the school plants, perform maintenance chores, clean floors, and move heavy objects. Some head custodians are given virtually no supervisory role respecting other custodians. Some of the schools employ student custodians. Student custodians answer to the Head Custodian and to the Principal. They work on a part-time, irregular basis during the school year. Regular custodians work on a full-time regular schedule, twelve months per year. Student custodians are paid less than regular custodians. The Purchasing and Warehousing Department is located within Business Services. The Director of Purchasing and Warehousing answers to the Program Director of Business Services. The Purchasing and Warehousing Department is divided into a Purchasing Division, a Property and Inventory Control Division, and a Warehouse Division. The Purchasing Division is headed by a supervisor who answers to the Director of Purchasing and Warehousing. The Purchasing Division is responsible generally for purchasing all supplies for the school system. Supplies are sent to the warehouse and are delivered from the warehouse to the schools. There are twenty-one employees in the Purchasing Division. Fifteen are Clerks or Clerk Typists. These employees generally type invoices and do filing. There are four Buyers in the Division. These employees process requisitions, process bids, and write bid specifications. The Buyers will consult with maintenance and instructional supervisors respecting supplies. The Purchasing Division is in constant contact with the warehouse, although the division is located approximately five miles from the warehouse. Three Purchasing Clerks work at the warehouse. These employees sit at desks and do not wear warehouse uniforms. Many persons in the Purchasing Division have been members of the Broward Educational Secretaries Association for some time, and wish to be represented in collective bargaining by that organization. Other employees of the Purchasing Division have been members of the Intervenor. The Public Employer employs numerous employees who perform work generally classified as in the building trades. Trade unions affiliated with the AFL-CIO have a long-standing agreement among themselves that they will not seek to represent members of another affiliated union's trade. The trade unions commonly refer to members of their trade as within their "jurisdiction". Neither the Petitioner, the Intervenor, nor the Public Employer are parties to that agreement. Tradesmen employed by the Public Employer do perform non-trade work. All tradesmen will drive trucks. The crane operator is often not engaged in that activity and will perform other maintenance work. Plumbers are occasionally called upon to dig ditches. Approximately 90 percent of the tradesmen's work is in their trade. The School Board has participated in an apprenticeship program which is managed in part by the trades unions. Through this program an employee of the School Board can become a journeyman. The program is not mandatory, and employees can become journeymen without participating in it. No evidence was offered at the hearing showing any direct conflict between tradesmen and other employees of the Public Employer. ENTERED this 12 day of March, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner in employment based on his age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on June 26, 1943. He has served as a city council member and mayor of Hialeah, which, during his three-year term as mayor, had 230,000 residents and nearly 1,200 city employees. Petitioner has served on the Dade League of Cities for seven or eight years, as well as the United States League of Cities and a committee of the United States Department of Housing and Urban Development. From October 1998 through November 27, 2000, Petitioner served as Park Director of Respondent, which is considerably less populated than Hialeah. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administration of Mayors Oliveros, Fatima, and Morejon. However, Mayor Morejon terminated the employment of Mr. de la Cruz, as well as several other employees who had served under Mayor Fatima. Running on the promise to clean up the city, Mr. de la Cruz won 57 percent of the vote and defeated then-Mayor Morejon. When he assumed office, Mayor de la Cruz had to address several pressing financial issues, including a projected deficit of $540,000 for the fiscal year and the cancellation of Respondent's insurance by the Florida League of Cities. At the same time, the people of Hialeah Gardens had become dissatisfied with the maintenance and operation of their city parks, which are the most visible reflection of the quality of their city government. Appointing Arturo Ruiz to oversee the parks and their maintenance and operation, Mayor de la Cruz nonetheless remained directly involved in parks administration by imposing new discipline upon parks workers to ensure public satisfaction with the maintenance and operation of city parks. Relations between Petitioner and Mr. Ruiz, who was the Director of Administration for Respondent, were often strained. Mr. Ruiz felt that Petitioner did not cooperate with him, but instead forced Mr. Ruiz to perform Petitioner's job by following through on parks projects until their completion. At the same time, Mayor de la Cruz felt that the condition of the parks was not improving. Mayor de la Cruz believed that Petitioner was at fault in failing to execute the Mayor's policies on maintaining and operating the parks. There is considerable dispute between Petitioner and his witnesses and Respondent and its witnesses as to whether the perceptions of Mayor de la Cruz and Mr. Ruiz were accurate concerning the inadequacies of Petitioner's job performance. For instance, Mayor de la Cruz testified to a long list of jobs, such as the erection of signage and repair of an air conditioning unit, that went undone or were finished too slowly under Petitioner. The Mayor also detailed dramatic improvement in the condition of the parks after the termination of Petitioner. On the other hand, Petitioner testified that Respondent did not have the funds for certain jobs, such as major drainage work, and that other work necessarily required a long time to complete. Petitioner also detailed dramatic deterioration in the condition of the parks after his termination. It is undisputed that Mayor de la Cruz fired Petitioner in late November 2000, a few days after firing Petitioner's Assistant Park Director, Rolanda Boada, for insubordination. It is not seriously disputed that Mayor de la Cruz did not fire Petitioner due to age discrimination. The Mayor claims that he fired Petitioner due to poor job performance. Petitioner claimed in a newspaper interview shortly after the termination that his termination was due to politics. While testifying, Petitioner repeated the same claim several times on direct until he finally--and unconvincingly--recalled that his age was also a reason for his termination. Whether Mayor de la Cruz fired Petitioner due to the Mayor's perception of poor job performance or insufficient loyalty is irrelevant to this case because the evidence fails to establish that the Mayor terminated Petitioner due to his age.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of February, 2002. COPIES FURNISHED: Gary A. Costales Law Office of Gary A. Costales, P.A. 2151 LeJeune Road Coral Gables, Florida 33134 J. Frost Walker, III Law Offices of J. Frost Walker, III 100 West Sunrise Boulevard Coral Gables, Florida 33133 Derick Daniel, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).
Findings Of Fact The Parties Petitioners are all political subdivisions of the State of Florida. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”). Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter. The Geographic Area at Issue. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line. Existing Transportation Corridors. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road. Transportation Planning for the Area. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties. The fact that the area is primarily residential and largely existing development also contributes to the problem. Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem. The projected development of Section 28 could significantly add to the traffic problems of the area. Section 28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and (c) a new corridor, the “Western Corridor”. Loxahatchee River Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool. Annexation of the Shores of Jupiter. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering. Since 1990, Jupiter annexed approximately 50 different properties. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992: The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . . See Palm Beach County exhibit 28. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution: The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town. Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following: the Town’s opposition to making Longshore Drive a major arterial, and the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today. Palm Beach County exhibit 7. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter. The Shores of Jupiter was subsequently annexed by Jupiter. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed. The Challenged Amendment Adopted Through Ordinance 68-93. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.” The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections, Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2 (hereinafter referred to as the “Remedial Amendment”), in compliance to be published. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM. The Remedial Amendment. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted: Neighborhood Protection The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods. The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas. With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods. GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods. Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor. Policy 4.1.1 The Town of Jupiter, in coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods. Policy 4.1.2 The Town of Jupiter, to the extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan. Policy 4.1.3 The Town Shall rReview planning and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores. Policy 4.1.4 The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. Policy 4.1.5 In the event an additional intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park. Policy 4.1.6 If an additional intercounty or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods. Policy 4.1.7 The Town shall coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion. Policy 4.1.8 The Town shall coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through]. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by: Changing the term “cooperate” to “coordinate/cooperate”; Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows: The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. [Additions indicated by underlined words and eliminated words struck through]. The Adequacy of Data and Analysis. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements. The stated purpose of the Joint Traffic Study was to: . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic. Joint Exhibit 7 The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged. This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy 4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4, 4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however, that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8. Conditional Policy or Self-Amending Policy. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings. A conditional policy, which Jupiter suggests Policy contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy. The evidence failed to prove that Policy 4.1.4 is a self-amending policy. Unbridled Discretion? Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following: a) the specific office or person that will make the determination; and (b) the specific time(s) when the determination will be made. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act. The Use of the Term “Discourage”. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged. Inconsistency with Palm Beach County’s Thoroughfare Identification Map. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose. Impact of the Remedial Amendment on Petitioners. The Petitioners are all local governments that adjoin Jupiter. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately $200,000.00 plus the cost of acquiring the right-of-way. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act. DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997. COPIES FURNISHED: Paul R. Bradshaw, Esquire Bryant, Miller & Olive 201 South Monroe Street Tallahassee, Florida 32301 Barbara Alterman Assistant County Attorney Palm Beach County Attorney’s Office Post Office Box 1989 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Post Office Box 3475 West Palm Beach, Florida 33402 Gary K. Oldehoff Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, Florida 33408 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas J. Baird, Esquire 11891 U. S. Highway 1 North Palm Beach, Florida 33408 Thomas G. Pelham, Esquire David Russ, Esquire APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 Bob Bradley Executive Office of the Governor Administration Commission 1601 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission 2105 The Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 The Capitol Tallahassee, Florida 32399-0001
The Issue The issue is whether First Transit, Inc. (“Escambia County Area Transit” or “ECAT”)1/ committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by subjecting her to disparate treatment and/or by retaliating against her.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On June 19, 2012, Ms. McMillan signed a document entitled “Escambia County Area Transit Cellular Phone Policy” which provided that: While on duty the use of a cellular phone or any other personal communication device is limited as follows: Employees on Company Business: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other company motor vehicle is prohibited. Push- to-talk communication devices issued by the Company may be used for work-related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable), request a 10-7, and exit the driver’s seat prior to using the cellular phone. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. The use of a cellular phone or other communications device by an employee while on the shop floor is prohibited, other than a Push-to-Talk communications device issued by the Company for work-related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. Roberta Millender has been a customer service representative at ECAT for the last four years. On July 28, 2015, at 12:25 p.m., Ms. Millender received a phone call from a customer who reported that the bus driver for Route 57 left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from the Route 57 bus in order to investigate the complaint. Because the videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.3/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. Via a letter dated August 3, 2015, Mike Crittenden, ECAT’s General Manager, notified Ms. McMillan that she was being terminated for violating Article 52 of the labor agreement. Mr. Crittenden’s letter deemed Ms. McMillan’s cell phone use to be a violation of section 1 which prohibited cell phone use while a transit vehicle is not secured. In addition, Mr. Crittenden’s letter noted that the termination was effective immediately. During the final hearing in this matter, Ms. McMillan was unable to present any evidence that any other similarly- situated bus drivers had not been terminated for using a cell phone while the buses they were driving were unsecured. Mr. Crittenden testified that 4 drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.4/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees, none of whom were aware of any bus driver being retained after violating the cell phone policy. The greater weight of the evidence demonstrates that Ms. McMillan was not discharged because of her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31th day of May, 2017.
