The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The issues are whether Respondent discriminated against Petitioner based on his race, and if so, what relief should be granted.
Findings Of Fact Respondent is a Florida corporation with its principal business location in Ormond Beach, Florida. Respondent operates a restaurant in Daytona Beach, Florida, known as IHOP 35. At all times material here, IHOP 35 had a racially-diverse workforce. Scott Studner is Respondent's President. Mr. Studner has direct supervisory authority over Respondent's management employees and ultimate supervisory authority over the non- management employees at IHOP 35. Mr. Studner is responsible for making all decisions relating to promotions and terminations of employees. Petitioner is a single African-American male with a minor son. Respondent hired him as a line cook in January 2007. At that time, Petitioner did not have any management experience. Petitioner worked as a cook on the day shift for approximately 15 months before Respondent terminated his employment. Petitioner began working 40-hour weeks for $9.00 per hour. He received at least five raises over a 12-month period, increasing his hourly wage to $10.00. Petitioner and all of the staff had to work some overtime during busy periods like "Race Week." Shortly after Petitioner began working, Mr. Studner asked Petitioner if he had any interest in a future management position. Mr. Studner routinely asks this question of all newly hired cooks. Mr. Studner told Petitioner about Chester Taylor, an African-American male, who began working for Mr. Studner as a dish washer and now owns and operates two IHOP restaurants of his own. Mr. Studner never made any representation or promise regarding Petitioner's potential advancement into a management position at IHOP 35. Shortly after he was hired, Petitioner began to demonstrate poor performance traits. He frequently arrived late to work. Occasionally Petitioner called to say that he could not work due to personal reasons. While working for Respondent, Petitioner reported several specific instances of racial hostility in the workplace to the general manager, Kathy, who tried to correct each problem as it arose. On one occasion, Petitioner discussed one incident with Mr. Studner, months after it occurred. In February 2007, Petitioner reported to Kathy that a white server named Sharon Blyler had made an inappropriate comment. Specifically, Petitioner accused Ms. Blyler of stating that she would get her orders out faster if she was black like a server named Angela. Kathy wrote Ms. Blyler up on a disciplinary form, advising her that comments about someone's race or color would not be tolerated. Mr. Studner was never informed about this incident. In April 2007, a white co-worker named Kevin called Petitioner a "monkey" several times. The name calling initially arose as a result of someone in the kitchen requesting a "monkey dish," which is a term commonly used in restaurants to describe a small round bowl for side items such as fruit. Petitioner reported Kevin's inappropriate comments to Kathy, who wrote Kevin up on a disciplinary form and suspended him for a week. Apparently, Kevin continued to work in one of Mr. Studner's restaurants but did not return to work at IHOP 35. Three or four months after Kevin was suspended, Mr. Studner asked Petitioner if Kevin could return to work at IHOP 35. When Petitioner objected, Mr. Studner said he would put Kevin on the night shift. During the conversation, Mr. Studner told Petitioner that he should have punched Kevin in the face for calling him a monkey. In the summer of 2007, there was an ordering mix-up involving a Caucasian server named Tiffany. When Tiffany became upset, Petitioner told her to calm down. Tiffany then called Petitioner a "fucking nigger." Kathy immediately had a talk with Tiffany, who then quit her job. Mr. Studner was never informed that Tiffany used a racial slur in reference to Petitioner. In August 2007, Petitioner received a formal verbal warning that was memorialized on a disciplinary form. The warning related to Petitioner's tardiness for work and for not maintaining his work area. When Kathy left her job as general manager of IHOP 35 in October 2007, there was no one person in charge of the kitchen. Petitioner and the other cooks continued to do their previously assigned jobs. On one occasion, Petitioner and another African- American male cook got into an argument. Someone at the restaurant called the police to intervene. Petitioner denies that he picked up a knife during the confrontation. At some point, Mr. Studner began working in the kitchen with Petitioner. Mr. Studner worked there for approximately five straight weeks. While Mr. Studner was working in the kitchen, he never saw any signs of racial hostility. However, Mr. Studner was aware that Petitioner could not get along with the rest of the staff. Mr. Studner realized that the staff resented Petitioner's habit of talking on his cell phone and leaving the line to take breaks during peak times. Respondent had an established and disseminated work policy that employees are not allowed to take or make cell phone or other telephone calls during work hours except in emergencies. Compliance with the policy is necessary because telephone calls to or from employees during paid working time disrupt the kitchen operation. Petitioner does not dispute that he made and received frequent calls on company time for personal reasons. Sometimes Mr. Studner would enter the restaurant and see Petitioner talking on the phone. Mr. Studner would reprimand Petitioner, reminding him that phone calls on company time were restricted to emergency calls only. Mr. Studner had video surveillance of the kitchen at IHOP 35 in his corporate office in Ormond Beach, Florida. Mr. Studner and his bookkeeper, Steven Skipper, observed Petitioner talking on his cell phone when Mr. Studner was not in the restaurant. Eventually, Mr. Studner decided to transfer Petitioner to another one of his restaurants to alleviate the tension caused by Petitioner at IHOP 35. After one day at the other restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because he realized that Petitioner was unable to get along with the staff at the new location. Respondent never gave Petitioner any managerial responsibilities. Petitioner did not approach Mr. Studner or otherwise apply for the position of Kitchen Manager or any position other than cook. Respondent never denied Petitioner a promotion. In December or January 2007, Respondent hired Larry Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not previously worked with Respondent, but he had extensive management experience at three different restaurants. When Mr. Delucia began working at IHOP 35, Petitioner and the other cooks were asked to help familiarize him with the menu and the set-up of the kitchen and coolers. They were not asked to train Mr. Delucia, whose job included scheduling and working on the computer, as well as supervising the kitchen. In February 2008, Petitioner told a white busboy named John to bring him some plates. John then told Petitioner that he was not John's boss and called Petitioner a "fucking nigger." The front-end manager, Pam Maxwell, immediately suspended John for a week but allowed him to return to work after two days. Mr. Studner was not aware of the incident involving John. Petitioner then asked Mr. Delucia and Ms. Maxwell for the telephone number of Bob Burns, the district manager for the International House of Pancakes, Inc. Mr. Studner was not aware of Petitioner's request for Mr. Burns' telephone number. Days later, Mr. Studner instructed Mr. Delucia to terminate Petitioner's employment. The greater weight of the evidence indicates that Mr. Studner decided to terminate Petitioner solely because of his continued cell phone usage on company time as observed in person and on surveillance tapes. At first, Petitioner did not realize he had been permanently terminated. During the hearing, Petitioner testified that he tried to return to work by talking to Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did not return Petitioner's calls. For years, Mr. Studner has employed African-Americans to work as servers, cooks, hostesses, kitchen managers, front- end managers, and general managers. Mr. Studner owns five other restaurants, including two other IHOPs. Over the last two years, Mr. Studner has hired three African-American general managers.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 <day> day of <month>, <year>. COPIES FURNISHED: Sebrina L. Wiggins, Esquire Landis, Graham French 145 East Rich Avenue, Suite C Deland, Florida 32721 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue The issues are whether Petitioner has just cause, within the meaning of Subsection 1012.33(1)(a), Florida Statutes (2007),1 to terminate Respondent’s professional service contract as an instructional employee, and, if so, whether termination of the contract is reasonable under the facts and circumstances of this case.
Findings Of Fact Petitioner employed Respondent as a classroom teacher from some time in 1998 until September 8, 2009, pursuant to a professional service contract. Petitioner relieved Respondent from the duties of her employment without pay on September 8, 2009. On September 21, 2009, Petitioner filed an Administrative Complaint against Respondent. Most of the material facts in the Administrative Complaint are undisputed. On December 12, 1999, Respondent was arrested for cocaine possession, a third-degree felony, and narcotic equipment possession, a first-degree misdemeanor. Respondent successfully completed a pretrial diversion program, and the charges were nolle prossed and expunged. Respondent did not report the criminal matter to Petitioner. The failure to report the criminal matter violated the self-reporting requirements in Management Directive A-10, Guidelines on Self-Reporting of Arrest and Convictions by Employees (the self-reporting requirements). On July 10, 2000, Respondent was arrested for driving under the influence (DUI), which was a first conviction. Respondent pled nolo contendere to a reduced charge of reckless driving and entered and successfully completed a pretrial diversion program. Respondent did not report the DUI matter to Petitioner. The failure to report the DUI matter violated applicable self- reporting requirements. On June 18, 2002, Respondent was arrested on a misdemeanor battery charge. The alleged victim dropped the charge, but Respondent did not report the incident to Petitioner in violation of the applicable self-reporting requirements. On July 6, 2006, Respondent violated Petitioner's Drug Free Workplace Policy by reporting to work at Rolling Hills Elementary School under the influence of alcohol. On July 9, 2006, Respondent entered into an agreement with Petitioner identified in the record as a Last Chance Agreement. The Last Chance Agreement was in effect for the 2006- 2007 and 2007-2008 school years. The Last Chance Agreement provides, in relevant part, that if justifiable grounds of discipline, rising to the level of a written reprimand or dismissal, occur during the school year, Respondent shall forfeit her right to be employed by Petitioner, and the Last Chance Agreement shall constitute a voluntary resignation from employment. The 2007-2008 school year ended on June 6, 2008. On May 30, 2008, Respondent failed to disclose on the renewal application for her Florida Educator's Certificate the expunged criminal record, pretrial diversion program, and plea of nolo contendere previously discussed. Respondent checked "no" to the following question: Have you ever had any record sealed or expunged in which you were convicted, found guilty, had adjudication withheld, entered a pretrial diversion program or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is not a minor traffic violation)? On March 20, 2009, the Education Practices Commission imposed several penalties against Respondent's teaching certificate for the violations that occurred during the 2007- 2008 school year. The Commission issued a written reprimand, imposed administrative fines in undisclosed amounts, and placed Respondent on two years’ probation. The disputed issue is whether Respondent's failure to disclose her criminal history on the renewal application for her Florida Educator's Certificate was intentional. Respondent claims the failure was not intentional, but was induced by post- traumatic stress syndrome (PTSS) caused by two statutory rapes that occurred when Respondent was 13 and 15 years old. When Respondent was 13 years old, a man who was approximately 33 years old "took her virginity." Respondent had an abortion, experienced a great deal of shame and guilt, and began self-medicating with alcohol and drugs. When Respondent was 15 years old, one of Respondent's high school teachers molested her. Respondent again experienced guilt and shame, did not disclose the incident, and continued using alcohol and drugs. Respondent presented expert testimony concerning the effects of PTSS. The expert testimony concludes that PTSS could have caused Respondent to drink excessively and fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. However, the expert testimony fell short of concluding that PTSS in fact induced Respondent to fail to disclose the criminal history on her application. Respondent's own testimony is that she had five or six glasses of wine the night she completed the application. Respondent completed the application without giving it much thought. On balance, a preponderance of the evidence does not support a finding that PTSS caused Respondent to fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. Several mitigating facts support a penalty less than termination of the professional service contract. The non- disclosure of facts was a harmless error to Petitioner. Petitioner had actual prior knowledge of all of the facts that Petitioner complains Respondent omitted from the application. The state licensing authority has knowledge of the non-disclosed facts. Respondent has already been disciplined for non-disclosure to the state licensing authority. When the Last Chance Agreement was entered into in 2006, Respondent was incorrectly diagnosed and treated for bipolar disorder. The treatment for bipolar disorder was ineffective during the term of the Last Chance Agreement. Respondent has been alcohol-free since September 2008, when she placed herself in a residential alcohol treatment program in Clearwater, Florida. Beginning in the early part of 2010, Respondent has been correctly diagnosed and treated for PTSS by Joseph L. Trim, Ed.D, a licensed mental health counselor and addiction specialist. That diagnosis and treatment appears to be effective for Respondent. Based on the testimony of the school principal who testified for Respondent, Respondent is an experienced and competent teacher who has not lost her effectiveness in the classroom. For each school year from 1998-1999 through 2004- 2005, Petitioner evaluated Respondent as effective in the classroom. Respondent has already received a reasonable penalty for violating the Last Chance Agreement, when Respondent was improperly diagnosed and treated for bipolar disorder. Petitioner has suspended Respondent from her employment without pay from September 8, 2009, to the present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order reinstating Respondent's employment with her current principal, requiring Respondent to continue her current therapy with Dr. Trim, requiring Respondent to submit to random drug screening, and extending the term of the Last Chance Agreement for another two years. DONE AND ENTERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of July, 2010.
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. 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 12th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue for consideration herein is whether Petitioner should be granted certification as a law enforcement officer in Florida.
Findings Of Fact In early November, 1988, the Palmetto, Florida Police Department submitted an application for certification as a police officer for Petitioner herein, James L. Foy, to the Criminal Justice Standards and Training Commission. The CJSTC is the agency in Florida charged with the certification of law enforcement personnel in this state. The Affidavit of Compliance submitted with the application reflected that "all criminal history records have been expunged under the provisions of Section 943.058(6)(a)", Florida Statutes. By letter dated February 8, 1989, the CJSTC notified Petitioner that it was denying his application for certification because: You knowingly engaged in sexual intercourse with a minor female person, after you had attained majority and while employed and certified as a law enforcement officer, though off duty. The parties stipulated, and it is so found, that the CJSTC has not conducted an independent background investigation of the Petitioner and relied solely on the single incident as set forth above as establishing that the Petitioner is not of good moral character. Petitioner served as a police officer with the Bradenton Police Department from April, 1982 to June, 1985 when he resigned. In the fall of 1984, when he was twenty-four years old, Petitioner was performing security services, in an off duty capacity, at a high school football game in Bradenton. After the game, Petitioner's supervisor in the police department, Corporal Simpson, invited him to come home with him after the game for some refreshments. Petitioner agreed, and subsequently met Simpson, Simpson's fourteen year old daughter, and another girl at the Simpson home. Shortly after going inside, Simpson excused himself and left the room with the other girl, leaving Petitioner along with Ms. Simpson on the couch in the living room. Almost immediately, Ms. Simpson began making sexual advances toward Petitioner to which he was initially receptive, believing her to be somewhat older than she was. He knew she was not 18, but did not know that sex with someone over 15 was against the law. Shortly after Ms. Simpson began sexual advances toward him, loosening his trousers and rubbing his penis, leading to her committing fellatio on him, Petitioner became uncomfortable with the situation, terminated the encounter, and left the Simpson house. During the course of an investigation into an allegation of sexual involvement of one or more Bradenton police officers with minor females in April, 1985, Captain Mayer, of the Manatee County Sheriff's Department interviewed Ms. Simpson and Petitioner's name came up. At that time, Mayer felt she looked older than she actually was. She wore "overdone" makeup and her speech and demeanor were promiscuous. She was obviously trying to make herself look older through the clothes she wore and admitted frankly she had initiated the contact with Petitioner. She also indicated she had sex with others, including other police officers, and could see nothing wrong with it. Mayer later interviewed Petitioner about this at the Bradenton Police Department. Petitioner was not under arrest at the time and frankly admitted the one involvement with Ms. Simpson at her house, as described above. After completing the investigation, Mayer made his report to the Assistant State Attorney who charged Petitioner with having sex with a child under age 16. No evidence was presented as to the outcome of that charge. While serving as a police officer with the Bradenton Police Department, Petitioner received several written and verbal commendations and was named police officer of the year in 1984. He had no disciplinary record with the department. He was well liked and respected by his fellow officers and superiors on the force and was rated as having excellent law enforcement officer abilities and characteristics. His reputation for truthfulness and integrity within the department was outstanding. Petitioner is also highly thought of within the remainder of the law enforcement community in Manatee County even though the incident with Ms. Simpson is well known throughout that community. He still has an excellent reputation for truthfulness and integrity within the community and those who know his character feel he can function effectively as a law enforcement officer notwithstanding this incident. In 1988 the Palmetto Police Department conducted a background investigation of petitioner relevant to his prospective employment with the department. This thorough investigation included a polygraph examination and interviews with his previous employers, friends, neighbors, and others who know and have known him for years. The ultimate conclusion of this investigation was that Petitioner is of good moral character. A similar investigation by the Hardee County Sheriff's Department in 1989 established the same. Other individuals on the periphery of the law enforcement community, who have: know Petitioner and his family for many years are satisfied his character and his reputation for honesty and integrity in the law enforcement and business communities are superb.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Criminal Justice Standards and Training Commission find that Petitioner, James L. Foy meets the good moral character requirement of the certification statute and, all other qualifications being met, grant him certification as a law enforcement officer in Florida. RECOMMENDED this 3rd day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of January, 1990. COPIES FURNISHED: Gene Johnson, Esquire Florida Police Benevolent Association, Inc. General Counsel 300 East Brevard Street Tallahassee, Florida 32301 Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P. O. Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Post Office Box 1489 Tallahassee, FL 32302 FDLE P. O. Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed an act or acts of age discrimination against Petitioner by not selecting him for promotion to sergeant with the Santa Rosa County Sheriff's Office.
Findings Of Fact Petitioner, Steven L. Boles, was employed at the Santa Rosa County Sheriff's Office in April 2001 as a deputy sheriff. Petitioner's date of birth is June 15, 1958, making him approximately 47-48 years old at all times related to the promotion issues, which are the subject of this proceeding. Petitioner completed 34 college classes while a deputy sheriff and attained a Bachelor's Degree from Troy State University. He was continuing his education towards a Master's Degree during the promotion period at issue. Petitioner had over 20 years' experience in the United States Air Force, during which his duties included managing a 24-person flight, supervising, planning, administering, and executed law enforcement and security training for a 270-person unit. The Florida Department of Law Enforcement recognized Petitioner's qualifications as being equivalent to those required by the State of Florida for certified law enforcement officers. During Petitioner's time as a deputy sheriff, he worked one position besides his road patrol duties. In 2003, he transferred to a property detective position where he served for almost a year. When he did not receive training that he deemed necessary to better perform his job, he transferred back to his road patrol position. Petitioner was certified as an all-terrain vehicle ("ATV") instructor in April 2006. Petitioner did not serve in a supervisory capacity while employed by Respondent. Under Sheriff Wendell Hall's administration, the promotional process for sergeant and lieutenant was established in General Order D-017. Applicants were ranked on an eligibility list based upon their scoring for specific criteria: advanced training courses, formal education, seniority, supervisory experience, written examinations, and an oral review board. Sheriff Hall promoted from the top of the list in order of ranking. The Fraternal Order of Police ("FOP") is the bargaining agent for deputy sheriffs. During collective bargaining negotiations in 2005, the FOP asked Sheriff Hall to change the promotional process to provide greater flexibility in promotions. The FOP believes that the top-ranked applicant is not necessarily the best candidate for an available position. The sheriff and the FOP executed a collective bargaining agreement ("CBA") in 2005 to implement changes in the promotional process that would afford more flexibility. Pursuant to Article 9 of the CBA, the parties agreed that General Order D-017 would be utilized in promotions. To effect the changes requested by the FOP, General Order D-017 was revised in December 2005. The new policy continued to provide that applicants would be ranked based upon scoring for specific criteria, but added field training officer experience ("FTO") as a new category to be scored. Additionally, the policy provided that the division captains and department major would review the promotion roster and provide a written recommendation to the sheriff for promotion of candidates. The sheriff would be provided with the top five names for one vacancy and one additional name for each additional vacancy. The new policy for promotion was provided to the FOP for review prior to its enactment. Pursuant to the CBA, the FOP could request impact bargaining within ten days of receipt of the policy. Because the FOP did not object to the policy, it became effective on December 26, 2005. The revised policy, General Order D-017, was provided to all members of Respondent, including Petitioner. Petitioner was aware that the process had been changed to permit the division captains and the department major to make written recommendations for promotion. Petitioner received a memorandum from Sheriff Hall on February 17, 2006, informing him of his eligibility to sit for the written promotion examination on March 22, 2006. Petitioner learned in that memorandum that credit for training courses and formal education would not be given for anything that had not occurred and was not present in the training office on or before March 10, 2006. When vacancies for sergeant and lieutenant became available in 2006, the promotional process followed the revised policy. Points were allocated to the applicants under the revised criteria, and the top 20 candidates were ranked. Major Steve Collier and Captains Jack Onkka and Jim Spencer met on May 26, 2006, pursuant to the newly-adopted policy, to review the applicants and make promotion recommendations to the sheriff. Because there were six vacancies for sergeant, the top 10 names on the roster were reviewed. Petitioner was ranked number five on the roster. Major Collier and Captains Onkka and Spencer concluded that the primary consideration for the recommendations for sergeant and lieutenant would be the motivation and initiative displayed by the applicants while employed at the Sheriff's Office. Believing that these qualities demonstrate the foundation of leadership, Collier, Onkka, and Spencer discussed each of the applicants to determine who best exemplified these characteristics. Collier, Onkka, and Spencer recommended six applicants who were ranked in the top 10 of the promotional roster: George Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry Salter, and Todd Reaves. Prior to the review by Collier, Onkka, and Spencer, three of these deputies were ranked higher in the roster than Petitioner and three of them were ranked lower. The reviewers selected these six deputies for promotion to sergeant because each had undertaken an assignment outside his normal duties or otherwise had distinguished himself in a manner that set him apart from the other candidates. George Hawkins, ranked number one on the roster, was recommended as a result of his field officer training experience. Further, he performed as an acting supervisor when the shift sergeant was absent, which the reviewers deemed significant. Field officer training was particularly valued by the reviewers because it required the deputy to serve as a front line supervisor for trainees as well as an instructor and mentor. Joseph Dunne also had performed field officer training and consistently volunteered for special operations projects that were after hours. William Dunsford, although not a FTO, was a member of the hostage negotiation team and, pursuant to this assignment, was on-call 24 hours a day, seven days a week. Similar to Dunne, Dunsford volunteered for special operations after hours. He particularly impressed Major Collier with noteworthy arrests and for his high level of professionalism and motivation. Wayne Enterkin was recommended as a result of his field officer training experience and his initiation of the drug court officers program, which involved juvenile offenders. He particularly distinguished himself in the drug court program. Jerry Salter was recommended as a result of field officer training experience and his assignment to the special weapons and tactics ("SWAT") team. As in the case of hostage negotiators, SWAT team members must undergo additional tactical training and are on-call 24 hours a day, seven days a week. They must also maintain a high level of physical fitness to participate in this unit. Todd Reaves was recommended because of his field officer training experience and his participation on the hostage negotiation team. Reeves also made noteworthy arrests in the northern part of the county, which was not a particularly busy area. Reeves had also received a lifesaver award for his extraordinary actions in providing care to a canine officer who was shot by a suspect. Petitioner was not recommended because the reviewers were not aware of any activities and assignments that set him apart from the other candidates. They were unaware of the fact that Petitioner had become certified as an ATV instructor, since that occurred on April 21, 2006, after the March 10, 2006, information deadline. The reviewing panel would not have given as much credit for Petitioner being an ATV instructor, even if his certification had occurred before March 10, 2006, since this activity did not require as much of a time commitment as a field training officer, hostage negotiation team member, or SWAT team member. The panel also passed over William Bass (ranked number two on the roster) and Christian Turcic (ranked number seven). Deputy Bass was deemed not particularly motivated and refused a transfer to a busier district when it was offered. Deputy Turcic was passed so he could complete his new assignment as a trainer of a new dog. Once he completed his assignment, he received a promotion to sergeant in September 2006. The age of the candidates for promotion was not a topic discussed by the reviewing panel. Sheriff Hall promoted Deputies Dunne, Dunsford, Enterkin, Hawkins, Reeves, and Salter in June 2006. He based his decision to promote these deputies upon the recommendations of his staff without regard to their age. When Petitioner became aware of the identities of the promoted deputies, he tendered a brief letter of resignation, dated June 15, 2006, in which he stated that his total loss of faith in the administration caused the need for him to leave immediately. Petitioner followed the brief letter with an email to Sheriff Hall on June 16, 2006, in which he elaborated on his qualifications and justifications of why he should have received a promotion to sergeant. Petitioner informed Sheriff Hall that he believed a "good-ol-boy system" was in place in the Santa Rosa County Sheriff's Office. In his letter and email resigning from Respondent, Petitioner made no mention of his age as a factor in his failure to be promoted to sergeant. Petitioner never inquired as to why he was not promoted. He met with Sheriff Hall, who informed him that he could be considered for promotion at a later date and encouraged him to contact Major Collier. Petitioner never spoke with Major Collier regarding his failure to be promoted to sergeant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Steven L. Boles 262 County Road 617 Hanceville, Alabama 35077 Robert W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32308 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE 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 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice by the alleged failure to re-hire him by the Respondent because of his alleged disability.
Findings Of Fact The Petitioner was employed as a machinist operating a "pega" machine for the Respondent at times pertinent hereto, in 1992 and 1993. On or about February 24, 1992, while he was home for lunch, the Petitioner apparently suffered a stroke. He was hospitalized and his wife and a nurse informed his employer of his medical condition. The Respondent is an employer within the meaning of Chapter 760, Florida Statutes. It is a manufacturer of commercial laundry equipment and employs more than 15 employees. Because of the medical condition related to his stroke, the Petitioner applied for and was granted a medical leave of absence on or about February 24, 1992 or shortly thereafter. There is apparently some question whether the Petitioner's supervisor actually signed the leave request, but the employer does not dispute that he was legitimately on a medical leave of absence until August 13, 1992. There is also some dispute concerning whether the Respondent employer knew that the Petitioner had suffered a stroke or not. The complainant's personnel file, however, contained two notes dated March 12, 1992 and August 17, 1992 from Dr. Watts, his treating and attending physician. The March 12, 1992 note confirmed that the Petitioner had been hospitalized and had had an abnormal cerebral imaging result, also suffered from hypertension and, at that time, was unable to return to work. The August 17, 1992 note from Dr. Watts stated that the Petitioner could return to work and stated that there were no restrictions on his activities. Thus, the evidence of record indicates that there was a basis for the Respondent to know that the Petitioner had a stroke or some type of disability between February 24, 1992 and August 17, 1992. Upon his release by his attending physician on August 17, 1992, without medical restriction of his activities, so that he could return to employment, there was no basis for the Respondent to believe from that point forward that the Petitioner had any disability. This is borne out by the Petitioner's own testimony revealing that he repeatedly sought re-employment with the Respondent during the period from August 1992 through February 1993 without advising the Respondent of any employment restrictions due to his medical condition or any purported disability. When the Petitioner returned to the Respondent's place of business on August 17, 1992 and sought to come back to work after his medical leave, the plant manager informed him that he had no openings for him at that time. There were two positions being filled at that time, but they were not positions for which the Petitioner was qualified. One was a position requiring skill at electrical schematic reading, which was an electrical assembly position. The Petitioner was not qualified for this position. The other position was as a "tig welder", a highly-skilled type of welding process. The Petitioner was not qualified to perform this, as well, because of his lack of knowledge of welding. The position, and similar positions, operating "pega" machines (machine tools), which the Petitioner had filled and performed prior to his illness, were all filled and unavailable at the time the Petitioner sought to return to work in August of 1992. Neither the Petitioner nor his physician had given any indication of when the Petitioner could return to work, prior to August 13, 1992, nor was there any communication with the Petitioner or his physician for six months during his leave of absence, other than the provision to the company of the physician's note in March 1992 concerning the brief description of his medical condition. Consequently, on August 13, 1992, when Mr. Rieff, the plant manager, received a note from the Petitioner's physician stating that he could return to work without restriction, there were no positions available for his type of skill and training. Therefore, the company recorded the Petitioner's status, as of August 1992, as being discharged due to the conclusion of his medical leave with no open positions suitable for him being available. The Petitioner testified that he sought employment several times during the period of August 1992 through January 1993 by attempting to contact or contacting Mr. Rieff. He stated that Mr. Rieff told him to check with him every two or three weeks because each time he spoke with him, Mr. Rieff informed him that no openings were available at that time. The Petitioner, however, filed no application for employment until he learned, from a visit to the state employment service office in February of 1993, that the Respondent was looking for a "pega machine operator". The Petitioner filed an application with the company at that time. Upon receiving the application or learning of it, Mr. Horton, Human Resources Director of the company, reviewed it and noted that the Petitioner had had previous experience with the company performing this same job. Mr. Horton had not been with the company at the time the Petitioner had left for his medical leave and, therefore, had no knowledge of his medical history, skills, abilities, and other past history with the company. Consequently, he consulted with Mr. Rieff concerning the advisability of re-hiring the Petitioner. Mr. Rieff advised against re-hiring the Petitioner because the Petitioner had had an attendance problem while he was employed by the company. In fact, although his other job skill and performance ratings were the highest, his attendance rating was the poorest in the company's system and means of rating performance. Consequently, because of Mr. Rieff's negative recommendation, on the basis of the Petitioner's past poor attendance record, which is substantiated by the evidence, Mr. Horton elected not to re-hire him. Mr. Horton did not know at that time of the medical history of the Petitioner because the medical records were housed in a different department of the company. Mr. Horton was the decision-maker for that employment decision. The employment action which resulted in the Petitioner filing the charge of discrimination at issue occurred when the Respondent failed to hire the Petitioner. The Petitioner maintains that it was on account of his medical condition or disability. The Petitioner verbally sought employment by contacting Mr. Rieff periodically from August 1992 through January 1993. On approximately January 7, 1993, Mr. Rieff effectively told the Petitioner that he would not hire him in the foreseeable future and that if he needed the Petitioner, he could call him. In February 1993, the application was actually filed by the Petitioner for employment, and Mr. Horton took the above negative action with regard to it. It is undisputed that the Respondent granted the Petitioner six months of medical leave. Whether or not the Respondent knew of the precise nature of the medical problem for which the Petitioner was given medical leave, the fact is established that upon the Petitioner being released by his treating physician with no restrictions and able to return to work, the Petitioner had no disability in terms of any impediment to his full employment, performing the full range of duties he had performed before the medical incident occurred in February 1992. Consequently, the Petitioner was not disabled from August 13, 1992 forward. The established reason that the Petitioner was not hired again by the Respondent company was because of his poor attendance record and not because of any perceived disability suffered by the Petitioner. In fact, at the times pertinent hereto when the decision at issue was made not to re-hire the Petitioner, the Petitioner suffered from no disability, and the Respondent had no perception that he did.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the petition filed by the Petitioner, Dennis W. Thomas, in its entirety. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2126 The parties were accorded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent submitted proposed findings of fact, which are accepted (Nos. 1-6) to the extent they do not conflict with or are inconsistent with the findings of fact made by the Hearing Officer. The Petitioner submitted a post-hearing pleading, in letter form, which really amounts to an argument as to the quantity, quality and weight to be ascribed to the evidence and included citation to the relevant statute, Section 760.10, Florida Statutes, and a court case which merely is cited for the purpose of pointing out that employment cannot be denied a person on account of illness and disability. That principle is not in dispute in this proceeding. The Petitioner did not separately state proposed findings of fact which can be specifically ruled upon by the Hearing Officer. Nevertheless, all legal and factual issues alluded to in the Petitioner's pleading have been addressed and ruled upon in the body of this Recommended Order. COPIES FURNISHED: Dennis W. Thomas 4396 Clyde Lane Post Office Box 56 Marianna, Florida 32447 Roger W. Horton, III Human Resources Director Unimac Company, Inc. 3595 Industrial Park Drive Marianna, FL 32446-9458 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2018.
