The Issue Whether the Respondent committed an unlawful employment practice?
Findings Of Fact At all times relevant, Petitioner, Mr. Simmons, was an employee of Respondent. Mr. Simmons was employed as a "ramp serviceman" in Tallahassee, Florida. His responsibilities included loading and unloading passenger baggage from airplanes. Mr. Simmons is black. On the evening of June 17, 1986, Mr. Simmons was working a shift which began at 5:00 p.m. and ended at 1:00 a.m. on June 18, 1986. While unloading passenger baggage from a plane in the early evening of June 17, 1986, Mr. Simmons and a coworker, Mr. Curtis, found a blue jacket. Mr. Wilkowsky, another coworker, took the jacket to Respondent's office in the terminal building and hung it up. Respondent has a policy for dealing with found property which requires that the person finding property complete an "Article Lost Found Report." If the person finding the property cannot complete the Report, the shift manager or another supervisor will complete the Report. In this case, a Report was not completed regarding the blue jacket. Who had responsibility for completing the report cannot be determined from the evidence presented at the hearing. Later that evening, Mr. Gibbons, an operations manager with Respondent, heard Mr. Simmons and Mr. Wilkowsky taking in an adjacent room about how something fit each of them. When Mr. Gibbons looked in the room, Mr. Simmons was wearing a dark blue, double-breasted jacket which seemed to fit. Around midnight on the night of June 17-18, 1986, Mr. Simmons went looking for his supervisor, Mr. Stillwell, the shift manager. Mr. Simmons was going to tell Mr. Stillwell that he was going to take the blue jacket to get it cleaned. Mr. Simmons did not find Mr. Stillwell. Mr. Simmons, without informing any of Respondent's employees, took the jacket with him when he left work. The next morning, Mr. Simmons took the jacket to the cleaners and returned the jacket to Respondent at approximately 1:30 p.m. on June 18, 1986. Respondent has a policy prohibiting the unauthorized removal of Respondent's property or a customer's property from Respondent's premises. Prior to removing a customer's property from the premises, an employee must receive written authorization from a member of management. In June 1986, and for a number of years prior to 1986, employees removing property from Respondent's premises without authorization were subject to immediate dismissal, regardless of seniority, prior record, or position within the company. Respondent's policy concerning unauthorized removal of property from Respondent's premises had been extensively disseminated to all employees. The dissemination consisted of a statement contained in the Employee Handbook which all new employees receive, of memorandums posted in bulletin boards, and of memorandums mailed or hand delivered to all of Respondent's employees. When Ms. Bell, Respondent's station manager in Tallahassee in June 1986, found out that a customer's jacket had been reported missing and that Mr. Simmons had taken the jacket off the premises, she initiated an investigation to determine what had happened. After completing the investigation and determining that Mr. Simmons had not left a note nor informed any of Respondent's employees that he was taking the jacket, Ms. Bell decided to discharge Mr. Simmons for violating the company's policy regarding the unauthorized removal of customer's property. Mr. Simmons was discharged on June 20, 1986. Charles Updegraff, a white employee with Respondent was discharged after being reprimanded six times due to customer complaints. His discipline was handled under Respondent's progressive discipline policy, and none of Mr. Updegraff's infractions were of the type subject to immediate discharge. Mr. Curtis, a black employee with Respondent made a large number of unauthorized long distance calls. He was not discharged but was required to pay the Respondent for the telephone calls. Under Respondent's policies, this infraction may result in a discharge, but it is not an infraction for which immediate discharge is mandated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations issue a Final Order dismissing the Petition for Relief filed in this case. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4236 The Respondent submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and Recommended Order Paragraph Number 1. Accepted. RO2 2. Accepted. RO1 3. Accepted. RO4 4. Accepted. RO7 5. Accepted. RO9 6. Accepted generally. RO8,9 7-8. Supported by competent evidence but unnecessary to the decision reached, except for last sentence which is Accepted. RO10 9. Accepted. RO6 10-11. Accepted generally. RO11,12 12. Accepted generally. RO13 13. Accepted RO13 14-15. Supported by competent evidence but unnecessary to the decision reached. COPIES FURNISHED: Dennis S. Simmons 4400 Bright Drive Tallahassee, Florida 32303 Michael F. Coppins, Esquire Douglas, Cooper, Coppins & Powell 211 East Call Street Tallahassee, Florida 32302-1674 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commisson, 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue presented is whether Respondents are guilty of committing a discriminatory practice against Petitioner, in violation of the Florida Civil Rights Act of 1992, by denying her a promotion and/or by constructively discharging her from her employment.
Findings Of Fact Petitioner Dianna Decker, a white female, began her employment with Respondent Gadsden County School Board on July 14, 1998. Her first job position was as the Training Coordinator/Specialist. In July 2002, Petitioner absorbed the additional duties of Staff Development Coordinator. Respondent Reginald James, a black male, was elected Superintendent of Gadsden County Schools in November 2004 and has continuously served in that capacity due to his re-election in 2008. In July 2005, Superintendent James promoted Petitioner to Director of Staff Development and Personnel. Petitioner applied for this promotion on July 7, 2005, after James told her he would like her to take the job. This promotion included a $13,000 annual increase in her salary. On July 13, James directed the School Board's finance department to begin paying Petitioner at the increased pay rate retroactive to July 1. On July 26, the School Board officially appointed Petitioner to the position to which James had promoted her, with the retroactive effective date of July 1. For purposes of employment with the various school boards in Florida, the superintendent "recommends" that a person be hired for a particular position, and the school board approves or disapproves the recommendation. Respondent James also gave Petitioner an additional $1,500 increase in salary during the 2005-06 school year. Petitioner and James enjoyed a good working relationship. As Director of Staff Development and Personnel, Petitioner had at least daily contact with James. Throughout her employment with the School Board, Petitioner applied for a variety of employment positions outside of the Gadsden County School System. Some of the positions she applied for were education-related, and some were not. Some of the positions she applied for were in Florida, and some were outside of Florida. By her own testimony, Petitioner kept her eyes open for opportunities for growth and upward movement. Dr. James Brown was the Deputy Superintendent of the Gadsden County School System from prior to the beginning of Petitioner's employment until his retirement in July 2007. Petitioner, Superintendent James, Dr. Sonja Bridges, and other personnel attended weekly management-team meetings at which they discussed, among other things, the attempts being made to find a replacement for Dr. Brown. Prior to Dr. Brown's retirement date, the Deputy Superintendent position that Dr. Brown was vacating was advertised. Although Superintendent James interviewed several candidates for the position, he was unable to find an acceptable candidate to hire. During the months of searching for a deputy superintendent to replace Brown, Dr. Sonja Bridges told James that she would take the job if he could not find anyone else. In a letter dated July 10, 2007, Petitioner wrote to the Jefferson County Schools in Louisville, Kentucky, asking to be considered for the position of Director of District Personnel/Human Resources which was being advertised. The morning of July 11, 2007, Superintendent James asked Petitioner to post a job opening for an Assistant Superintendent for Academic Services position. Later that same day James announced that he had chosen Dr. Sonja Bridges to fill that position. Petitioner told James that Bridges was not qualified to fill the position as it was described in the job posting. James told Petitioner that they would modify the position so that Bridges would be qualified and instructed Petitioner to take down the job description that she had posted. Petitioner also did not meet the qualifications for Assistant Superintendent for Academic Services as the position was posted, and she did not apply for that position during the short time between its posting and its removal. At its July 24, 2007, meeting, in accordance with its standard practice, Respondent Gadsden County School Board proposed a rule change that would modify the job description for an Assistant Superintendent for Academic Services position. This proposed modification was required to be advertised to the public for 30 days to receive comments and could not be finalized until at a Board meeting following the conclusion of that notice period. On August 6, 2007, Petitioner re-posted the Assistant Superintendent for Academic Services position. The proper procedure would have been to wait until after the School Board had approved the rule change at a subsequent meeting, and then post the position. Neither James nor anyone else requested or authorized Petitioner to re-post the position prior to the position being approved by the School Board, and Petitioner re- posted it against established School Board procedure. Also on August 6 Petitioner completed her application for the position and handed it to Regina Gore, a secretary who reported to Petitioner. Petitioner gave Gore no instructions as to what to do with Petitioner's employment application. Petitioner's job responsibilities included compiling and submitting job applications and presenting them to Superintendent James for his consideration. However, Petitioner did not tell anyone other than Gore that she had completed an application for the Assistant Superintendent for Academic Services position, and she never compiled and submitted to James for his consideration her application and the other application that was received in response to her unauthorized August 6 job posting. At its August 2007 meeting, Respondent Gadsden County School Board adopted the rule change for the modified job description after receiving no comments from the public during the 30-day comment period. Respondent Gadsden County School Board then officially appointed Dr. Bridges to the position of Assistant Superintendent for Academic Services to which Superintendent James had promoted her, with a retroactive effective date of July 2, 2007. Dr. Bridges meets the qualifications for the modified Assistant Superintendent for Academic Services position, as does Petitioner. In her new position, Dr. Bridges became Petitioner's immediate supervisor. Prior to Bridges' promotion, she and Petitioner had a professional and friendly working relationship; however, after her promotion, Petitioner became uncomfortable working under Dr. Bridges and had difficulty taking directives from her new supervisor. During the time that Respondent James has been the Superintendent of Gadsden County School System, he has recommended, and Respondent Gadsden County School Board has approved, two Assistant Superintendents: Dr. Bridges and Ms. Bonnie Wood. There have been no other Assistant Superintendents under Superintendent James. Dr. Bridges is a black woman, and Ms. Wood is a white woman. Ms. Wood is the Assistant Superintendent for Business and Finance and, like Dr. Bridges, reports directly to Superintendent James. There were three applicants for Ms. Wood's position: Ms. Wood and two black males, and Superintendent James hired her. There have not been any Deputy Superintendents since Dr. Brown retired. On September 28, 2007, Petitioner was offered the position of Director of Human Resources, Certified Division, with Jefferson County Schools in Louisville, Kentucky. By letter that same day to Superintendent James, not to her supervisor Dr. Bridges, Petitioner voluntarily resigned from her position with Respondent Gadsden County School Board, effective November 15, 2007. After her departure, Petitioner's position was filled on an interim basis by a white male. At the time she voluntarily resigned from her employment with Respondent Gadsden County School Board, Petitioner earned $66,363 annually. Petitioner's salary at her job in Kentucky with the Jefferson County Schools as of the date of the final hearing in this cause was $119,000 annually. Superintendent James never saw Petitioner's application for the position filled by Dr. Bridges until Respondents' counsel showed him a copy in February 2009 in preparation for the final hearing in this cause. Furthermore, James never heard of Petitioner having any interest in that position until after Dr. Bridges' appointment was made official by Respondent Gadsden County School Board. Even then, he did not hear of Petitioner's interest in the position from her; rather, he learned of her disappointment in not having been given the job from comments made to him by others. On December 10, 2007, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations alleging that she had been discriminated against by Respondent James and Respondent Gadsden County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner has failed to prove that Respondents committed an act of discrimination against her and dismissing Petitioner's petition for relief filed in this cause. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of May, 2009. COPIES FURNISHED: Bruce Alexander Minnick, Esquire The Minnick Law Firm Post Office Box 15588 Tallahassee, Florida 32317 Matthew Carson, Esquire Linda G. Bond, Esquire Rumberger, Kirk & Caldwell, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year. Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District. The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool. In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted. On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms. Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC). Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released. Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a Glen Springs kindergartner) injecting her with substances that caused partial paralysis. After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs. Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted. During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019. Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.” On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond. Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.” Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated. Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District. Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states: If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues. The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations. The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement. As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination. Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record. Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination. The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement. Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation. Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation. Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher. On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year. At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave. Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted. Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so. Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination. Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief. DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Karen Clarke School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Marshalee M. Wright Post Office Box 141981 Gainesville, Florida 32614 (eServed) Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2011.
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent's refusal to attend an investigatory interview, scheduled for April 17, 2007, is a violation of the Florida Administrative Code Rule and/or School Board policy. Whether Respondent's conduct on April 17, 2007, rises to the level of just cause to terminate Respondent's employment as a teacher with Petitioner.
Findings Of Fact Respondent's employment as a teacher on annual contract with Petitioner began on August 1, 2005. Respondent's contract was renewed for the 2006-2007 school year, and he was assigned to teach at Bayshore High School. On March 14, 2007, Respondent received notification by his principal that he was not being recommended for reappointment for the 2007-2008 school year. Effective May 25, 2007, Respondent's contract with the School District, as a teacher at Bayshore High School, expired. On or about March 27, 2007, Debra Horne (Horne), the investigator for Petitioner's Office of Professional Standards (OPS), became aware of an allegation that Respondent was inappropriately close to a student in one of his classes. The OPS investigator is considered a "caregiver" under Chapter 39, Florida Statutes, and therefore, if she has a suspicion of child abuse, it is her duty to report it to law enforcement. On March 28, 2007, Child Protective Services (CPS) informed Horne that there was an allegation of possible inappropriate interaction against Respondent with a female student at Bayshore High School. The CPS Investigator, Tequila Crenshaw, advised her that she was in the process of conducting a joint investigation into the allegations with Detective McCabe from Crimes Against Children (CAC), a unit of the Manatee County Sheriff's Office. Horne inquired as to whether she could move forward with an OPS investigation. She was told that the CPS and CAC investigations were ongoing. At that point, Horne suspended her investigation. This was consistent with her practice of not moving forward until she got clearance from CPS and CAC. She did not wish to interfere or impede in their investigation in any way. On April 11 and 12, 2007, Horne received clearance from CAC and CPS, respectively. The two agencies informed her that they had concluded their investigations, and no criminal charges would be filed. Horne had continuing concerns about the alleged inappropriate interactions. She determined to go forward and conduct an internal investigation on behalf of the School District. On April 12, 2007, Horne called Respondent, by telephone, and directed him to report to the Office of Professional Standards on the following day, April 13, 2007, so that she could conduct an investigatory interview. Respondent was advised that failure to appear would result in a charge of insubordination. During the telephone conversation with Respondent, he confirmed that he was not a member of the union. Respondent asked if he could have his private attorney present during the investigatory interview. Horne responded that it was not permissible. Prior to their telephone conversation, Horne had received information from the Manatee Education Association (MEA), the teacher's union, that Respondent was not a member of the union. On April 13, 2007, Horne had a telephone message from attorney Melissa Mihok (Mihok), a specialist in labor and school law, stating that Mihok had been retained by Respondent to represent him in allegations of inappropriate interactions with students at Bayshore High School. Mihok asked if the interview scheduled on the 13th could be postponed until the 17th of the month, so that she could meet with Respondent prior to the interview. Soon after retrieving the telephone message from Mihok, Horne was advised that Respondent and a different attorney, James Dirmann, had arrived at the Office of Professional Standards (OPS). After greeting Respondent and his attorney, Horne requested that John Bowen, the Manatee County School Board Attorney, sit in on the discussion, since the employee's attorney was present. Bowen, Dirmann, Raven, and Horne sat at the conference table and discussed whether or not a private attorney would be allowed to sit with Respondent during his interview relating to this matter. During the conversation, Bowen made it clear that the private attorney would not be allowed to be present during Horne's investigatory interview with Respondent. Dirmann then advised Bowen and Horne that Respondent would not be answering any questions because he was being denied representation and, also, that he was invoking his Fifth Amendment privilege against self incrimination. Bowen advised Dirmann to seek the advice of a labor lawyer because his advice to his client, to not answer questions, could result in the termination of Respondent's employment. Melissa Mihok then participated in a subsequent discussion, on the same day, by telephone, which included all of the above participants. Dirmann and Mihok expressed a desire to confer with their client prior to an interview. It was agreed to postpone the investigatory interview until April 17, 2007, at 10:00 a.m., at the OPS office. Thereafter, Respondent received legal advice from Mihok regarding his rights in connection with the investigation by OPS. Respondent remained concerned that any information obtained by Horne, during the interview, would be shared with CAC and/or CPS, to his detriment. On April 17, 2007, Horne received a telephone call from Dirmann who stated that he had spoken with Mihok and they had advised Respondent not to participate in the OPS interview that was scheduled for 10:00 a.m., on April 17, 2007. Subsequently, Horne received a letter by facsimile from Dirmann, which stated in pertinent part: After further thought and consultation with me and with Mrs. Melissa Mihok, Attorney at Law, our client will respectfully decline to answer any questions regarding your current investigation. The letter from Dirmann to Horne, dated April 17, 2007, does not state that the reason Respondent would not submit to an interview was because he was not permitted to have an attorney present. Respondent did not appear at the rescheduled interview on April 17, 2007. Respondent was suspended without pay by the School Board effective April 24, 2007. Petitioner's policy, denying a non-union employee from having a private attorney present during an investigatory interview, had not changed. The School Board's policy regarding representation of School Board employees by private attorneys in investigatory interviews was subsequently delineated in a memorandum to School Board members and the Superintendent from School Board Attorney John Bowen in a memorandum, dated August 20, 2007. In that memorandum, which addressed "employee rights when meeting with the employer," Bowen stated that citizens do not have the right to have an attorney with them at all times. Bowen stated that, in accordance with the Sixth Amendment to the United States Constitution, a citizen has the right "to have the assistance of counsel for his defense," but that right is restricted to criminal prosecutions. Bowen noted that under Subsection 120.57(1)(b), Florida Statutes (2007), a person whose substantial interests are being determined by an agency is entitled to "be represented by counsel or other qualified representative" in a formal hearing, but that right is restricted to the formal hearing itself. It does not extend to meetings between the employee and the employee's supervisor or other administrators that precede the formal hearing. Bowen stated that Subsection 120.62(2), Florida Statutes (2007), provides that any person appearing "before any presiding officer or agency in an investigation or in any agency proceeding" has the right to be accompanied, represented, and advised by counsel or other qualified representative." Bowen pointed out that the right to counsel provided in Subsection 120.62(2), does not extend to meetings with an individual's supervisor or other administrator as they are not a "presiding officer" and they do not constitute an "agency" and such meetings are not an "agency proceeding." Bowen further advised the members of the School Board and the Superintendent that Florida's Public Employees Relations Commission (PERC) has held that a public employee is entitled to union representation, if requested, in any investigatory interview where the employee has a reasonable belief that disciplinary action may result from the interview. Bowen also noted that outside of the "Weingarten right," an employee does not have the right to have any representative at a meeting with the employee's supervisor or other administrator. The memorandum stated as follows: "It is the inherent right of the employer to direct employees. Employees have no right to place conditions on compliance with an employer's lawful directive. It is insubordination to refuse to meet as directed or attempt to impose conditions not agreed to by the employer. Such insubordination subjects the employee to discipline, including termination of employment. An attorney who counsels his or her client to refuse to meet with an employer puts that client in serious peril of termination." It is the practice of the OPS investigator to advise employees, who are not members of the MEA, that she has been informed that the MEA does not represent non-members. Consistent with Bowen's memorandum to the School Board Members and the Superintendent, employees, in the past, have been disciplined by the School Board for refusing to submit to an investigatory interview without their private attorney being present. The OPS investigator has been authorized by the School Board to investigate possible employee misconduct that may lead to disciplinary action more serious than a written reprimand. The Investigator conducts interviews in order to gather information to either clear an individual of the allegations made, or to substantiate the allegations based on the information given to the investigator by the witnesses. The Investigator's direct supervisor is the Staff Attorney with whom she consults on her investigations. After the investigation is completed, the investigator prepares an investigatory report, which is reviewed by the Staff Attorney for editing and addition of the "violations" section, if any. Once the report is complete, the investigator sets a meeting with the individuals in the chain of command of the employee, and a meeting is held during which a recommendation to the Superintendent is formulated. The OPS investigator attends the meeting. Her role is to answer questions about the report that she has prepared and to answer questions about past practices. After the meeting of these individuals, the Assistant Superintendent for the District takes the information to the Superintendent. Other employees of the School Board are also charged with investigating complaints that may lead to discipline, but only actions which may result in an oral or written reprimand. Any allegation that may result in discipline in excess of a written reprimand is only investigated by the OPS investigator. Superintendent Roger Dearing (Dr. Dearing) testified that the factual basis for his recommendation that Respondent be terminated was his refusal to come in and submit to an investigatory interview by the District's Office of Professional Standards. Dr. Dearing testified that Respondent's effectiveness had been impaired in the system as a result of his actions in not submitting to the interview. Allegations were made by peers, in this case, regarding Respondent, this warranted an investigation to make sure the safety and care of students was maintained. Dr. Dearing testified that he believed that Respondent's effectiveness had been impaired by his refusal to cooperate in an investigatory proceeding. This he is required to do under the School Board's rules and policies, and as a part of his professional ethics as a certificated individual. Dr. Dearing testified that Respondent's failure to cooperate left a "cloud of doubt" with the administration and the parents of other children who would be in Respondent's classroom. This impaired his effectiveness. Dr. Dearing also testified that, in his opinion, Respondent's refusal to cooperate constituted a violation of Florida Administrative Code Rule 6B-1.001(3), which provides: [a]ware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Dr. Dearing also testified that he had a concern about an employee, who was allegedly having inappropriate interactions with a female student and who did not submit to an investigatory interview. This would be a violation of Florida Administrative Code Rule 6B-1.001(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Manatee County enter a final order finding: Respondent did not violate any of the charges alleged in the charging letter; Reverse Respondent's suspension as a teacher without pay; and Compensate Respondent for the period from April 24, 2007, until the expiration of his contract, May 25, 2007. DONE AND ENTERED this 5th day of February, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2008.
The Issue This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are: Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision? If so, does the Petitioner in this case have standing to bring such a challenge? If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law? All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.
Recommendation Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner. DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.) Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case. Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details. Further, most of the factual assertions on this page constitute inferences not warranted by the evidence. Page 17: All of the material on this page is rejected as constituting unnecessary details. Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details. Further, some of the assertions on this page constitute inferences not warranted by the evidence. Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details. Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence. Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence. Findings proposed by Respondent: The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph 17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact. Findings proposed by Intervenor: The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.) COPIES FURNISHED: Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721 Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building Tallahassee, Florida 32399-0400 Ronald G. Meyer, Esquire Post Office Box 1547 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Sydney H. McKenzie, III, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
