The Issue Whether Petitioner's furlough should be revoked based on his failure to comply with the terms of the furlough agreement which he executed on April 6, 1981. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.
Findings Of Fact Petitioner, Samuel Grant, is a seventeen (17) year-old male who was furloughed to the Department of Health and Rehabilitative Services, Youth Services Division, on April 14, 1981. At that time he agreed to abide by a furlough agreement which required, inter alia, that he (1) obey all laws; (2) not change or leave his residence, employment, or school, or leave the county without the consent of his counselor or other authorized HRS representatives; (3) that he keep in contact with his counselor and (4) that all instructions of his counselor be carried out. Additionally, he agreed to abide by a 9:00 P.M. curfew on week days and an 11:30 P.M. curfew on weekends; attend community mental health for counseling; attend school or find gainful employment and make weekly contact with his counselor on Wednesdays of each week. (Petitioner's Exhibit 2.) On September 8, 1981, the Youth Services Division revoked Petitioner's furlough agreement based on the following facts: (1) Petitioner failed to obey laws and he gambled for his income; (2) failed to follow instructions of his parents and counselor; (3) continuously violated his curfew and (4) failed to attend school or maintain employment. (Petitioner's Exhibits 1 and 3, and Testimony of Jesse Morris, Petitioner's counselor while furloughed at the Belle Glade Youth Center.) The evidence herein also reveals that Petitioner was expelled from school because he possessed marijuana and his mother testified herein that he violated his curfew on numerous occasions. Petitioner's mother indicated that he spent nights away from home on a number of occasions and that he was afforded an opportunity to work with his father, a contractor, who extended a job offer to Petitioner. Petitioner has repeatedly run afoul of criminal laws from December, 1978, through October, 1980, including, but not limited to: (1) unauthorized use of a motor vehicle; (2) malicious mischief; (3) resisting arrest with violence; (4) possession of burglary tools, night prowling, and (5) burglary and grand larceny. Petitioner does not dispute the above findings; offered that he felt that he was not breaking the law and that he did not consider that it was "right" for him to attend school. He offered no explanation as to his failure to accept the offer of employment extended by his father.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's Order of September 8, 1981, revoking Petitioner's furlough, and ordering him to be reassigned to another program or facility as soon as practical, be SUSTAINED. RECOMMENDED this 1st day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1982. COPIES FURNISHED: Samuel L. Grant c/o Florida School for Boys Route 7, Box 250 Okeechobee, Florida 33472 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Recommendation There are factors in mitigation which should be considered in this case to include the following: Carlson and Benedict had personal reasons for discrediting Beach and their actions show their anamosity toward her. The events which constituted the majority of the charges against Beach happened over one year before the Report was made to the Florida State Board of Nursing by Carlson. Beach worked at Lancaster Youth Development Center approximately seven years. She received good efficiency ratings for her employment from Carlson and Benedict for the period of time covered by the allegations relating to employment of unlicensed persons and unauthorized administration of medication, although, if their testimony is believed, they had knowledge of these matters. The testimony of the witnesses is largely unsupported by any physical evidence with the exception of the testimony of Rollings, whose testimony was rejected because of the changes which she had made from her original statements. Beach called and obtained authority to administer valium to a rape victim, who under any reasonable interpretation of the Department of Health and Rehabilitative Services policy, was entitled to treatment at the infirmary. Having sought authority to administer valium under these circumstances, it is difficult to conclude that she would have administered valium or any other prescription drug to Rollings or Campbell without obtaining authority. Based upon the foregoing findings of fact, conclusions of law, and factors in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Adeline Beach. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Florida State Board of Nursing 1107 Blackstone Building Jacksonville, Florida 32202 Smith and Johnson Post Office Box 508 Gainesville, Florida 32602
Findings Of Fact Alfred Perry is a fifteen year old child under commitment to the Department of Health and Rehabilitative Services (HRS) who on July 16, 1980, was granted the privilege of transferring to an Intensive Counseling Program under the direct supervision of the Bureau of Group Services, Division of Youth Services. While participating in that program, Respondent was permitted to remain in the custody of his father at Fort Pierce, Florida. The transfer was the subject of a furlough agreement entered into by Perry and HRS on the same date. Under the terms of the furlough agreement, Perry was required to comply with fourteen conditions of supervision as a prerequisite to remaining in the treatment program and on furlough (Exhibit No. 1). In the event a condition was violated, Respondent was subject to being transferred to another program or facility of the Division of Youth Services (Exhibit No. 1). Because of certain alleged violations of Perry's Supervision Agreement (Exhibit No. 3), an informal transfer hearing was held on August 27, 1980, in Fort Pierce, Florida, before a Youth Services Program Specialist. By Order dated September 2, 1980, the Specialist recommended that Perry's furlough be revoked for violating Conditions (1), (4) and (11) of his Supervision Agreement, and that he be transferred to another program/facility. Since that time, Perry has been assigned to the Training School at Okeechobee, Florida. Condition No. 1 of the Agreement requires that Respondent "promptly and truthfully answer all questions directed to (him) by the counselor." On or about August 4, 1980, Respondent telephoned his counselor and advised her he had been injured when falling off a motorcycle and would therefore be unable to attend a required group session. While conceding he also watched a basketball game in a playground adjacent to his home after the injury occurred, he nevertheless maintained the injury prevented his participation in the group session on that date. Condition No. 4 requires that Respondent "not change or leave residence." This condition prohibits Respondent from spending the night at another person's house without having obtained permission from his counselor. The counselor was advised by Respondent's father that Perry spent the nights of July 18, August 18 and 19, 1980, at his sister's house. Respondent confirmed he spent several nights at his sister's home during the period in question. Although prior permission to stay overnight was required from the counselor, Respondent failed to obtain such permission on each occasion. Condition No. 11 provides that Respondent observe an 8:00 p.m. curfew on weekday nights and a 9:00 p.m. curfew on Fridays and Saturdays. Respondent acknowledged he was not inside his father's house at the required time on the evening of July 30, 1980.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the furlough agreement of Alfred Perry be revoked and the action of Petitioner on September 2, 1980, be sustained. DONE and ENTERED this 16th day of January, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1981. COPIES FURNISHED: K. C. Collette, Esquire District 9 Legal Counsel Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Mr. Alfred Perry Florida School for Boys Route 2, Box 250 Okeechobee, Florida 33472 Shirley M. Steele, Esquire Assistant Public Defender 111 Atlantic Avenue Fort Pierce, Florida 33450
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
The Issue The issues in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of March, 2018.
The Issue Did Respondent, Winn-Dixie Corporation (Winn-Dixie), discriminate against Petitioners on account of their race or sex, or retaliate against Petitioners in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioners, Reginald Burden (Burden) and Donald Rockhold (Rockhold) were co-workers and Warehouse Supervisors for the night shift at Winn-Dixie's General Merchandise Distribution (GMD) facility on Edgewood Avenue in Jacksonville, Florida. At the time of their termination from Winn-Dixie, Rockhold had worked for Winn-Dixie for almost ten years and Burden for fourteen years. In March 2009, Rockhold's supervisor, Mark Murray (Murray) received an anonymous letter accusing Rockhold (a/k/a Rocco) of being unable to control his libido and attempting to "sleep with as many women under him as possible, married or single." Murray showed the letter to his immediate supervisor, Operations Manager Jayson Kielar (Kielar), who in turn showed it to his supervisor, Distribution Center Manager Robert Stewart (Stewart). Contrary to Winn-Dixie policy, the existence of the letter accusing an employee of sexual harassment was not immediately brought to the attention of the Winn-Dixie Human Resources (HR) office. According to Kielar, Stewart did not inform HR because he was afraid someone would be fired. Instead, it was decided the matter would be handled internally at the GMD. Stewart and Kielar informally questioned Rockhold, who denied all of the allegations in the letter. Kielar questioned Stewart's decision not to involve HR, but because Stewart was his boss, he capitulated. In December 2009, Winn-Dixie received a second, similar anonymous letter complaining about rampant sexual harassment in the GMD. This time, however, Peter Lynch, Winn-Dixie's CEO also received a copy. Entitled "Gross Abuse of Power Winn-Dixie Sex Camp," the letter contained lurid accusations of sexual misconduct and named Rockhold as the worst abuser. The letter also accused several other male supervisors, namely Burden (a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of sexually harassing female employees. Winn-Dixie immediately launched an investigation to determine whether the allegations were accurate. Robert Scott (an African-American male), Tanya Kornegay (an African-American female), and Stacy Brink (a white female) interviewed numerous GMD employees and obtained written witness statements. Rockhold was interviewed twice (January 18 and 25, 2010) and Burden once (January 18, 2010). During the course of the investigation, it became evident that many of the more sordid accusations of overt sexual misconduct in the letters were false or unsubstantiated. However, the investigation did reveal violations by Petitioners of Winn-Dixie's "Written Company Policy Statement on Harassment, Including Sexual and Racial Harassment." That Statement provides in relevant part: The company will not tolerate any harassment that degrades or shows hostility towards an individual because of race, color religion, sex, national origin, age or disability, including, but not limited to slurs, jokes, verbal abuse, stereotyping, threats, intimidation, hostile acts, or denigrating or hostile written or graphic material circulated or posted in the Company premises. Anyone who violates these guidelines will be subject to termination. * * * 3. Management at all levels is responsible for reporting and taking corrective action to prevent harassment in the work place. * * * The following conduct, especially by managers, can be as serious (or even more serious) than harassment itself: Ignoring or concealing harassment, or treating it as a joke. Failing to report known harassment. Retaliating against associates reporting or complaining of harassment. Being dishonest or refusing to cooperate with a harassment investigation. With respect to Rockhold, the investigation revealed that Rockhold had heard racial slurs and racially inappropriate remarks among employees but failed to take any disciplinary action or report the harassment to HR. One employee complained that Rockhold observed African-American and white employees using the words "nigger" and "cracker" in the workplace. In addition, another employee complained that Rockhold ignored a co-worker saying, "If you come back in Middleburg, we'll show you how we used to do them black boys back in the days." At hearing, Rockhold acknowledged that he heard GMD employees calling each other "nigger" or "cracker." He stated that he "called them out on it." He explained his failure to take any formal disciplinary action by stating, "It wasn't malicious. It was the n-word between black guys being thrown back and forth as a nickname." According to Rockhold, he didn't think it was inflammatory in that context and was merely their vernacular. The investigation also revealed allegations from several employees that Burden made inappropriate sexual comments toward female employees. These included witness statements from John Mason, Tammy Underwood, Amber Brown and Frank Butler. Burden was reported as saying one female employee had "big titties," and telling another female employee that she looked good in her jeans, that Burden could "handle" her, and when was she going to let him be the one for her, and that she didn't need to mess with the young guys because he (Burden) could please her better in the bedroom. One GMD employee testified at hearing that he was present when Burden told a group of employees that he thought a particular female employee had "nice tits." Petitioners knew Winn-Dixie did not tolerate sexual or racial harassment in the workplace, and they were tasked with making sure the environment was not one where employees felt it would be tolerated. Both Petitioners received sexual and racial harassment training as part of their leadership training. Winn-Dixie's employment policies emphasize the importance of supervisors' roles as leaders and the importance of not giving the impression to employees that it is acceptable to make inappropriate jokes in the workplace. Moreover, a supervisor has a duty to act when observing harassing behavior in the workplace. The failure to act communicates to subordinates the company condones or tolerates the behavior. As a result of the investigation, Winn-Dixie decided to terminate Petitioners' employment. Several members of Winn- Dixie's management (male, female, white and African-American) were involved in making this decision. One of those involved in making the decision testified that the group never discussed or considered Petitioners' gender in their decision to terminate Petitioners' employment. The termination notices given to Petitioners are identical, and read as follows: "As the result of an anonymous letter received in early January 2010, addressed to Peter Lynch, a thorough investigation was conducted relative to alleged allegations of inappropriate comments by Associates regarding sexual and racial comments in the presence of management in the Jax-GMD Warehouse. The investigation clearly identifies you as a willing participant or lack of effective execution of the proper protocol established through management training (Duty to Act) to address inappropriate comments from Associates as required by Winn-Dixie's Policy in your Supervisor position." At hearing, Rockhold described his job as "being his life, other than his children." He also testified that being falsely accused of sexual misconduct or ignoring employees who engaged in sexual or racial misconduct, then being fired, ruined his life. He "poured his heart and soul into the company" and testified that no one had ever come to him, as a supervisor, with any kind of a problem with regard to sexual or racial misconduct. Burden testified that he believed that Robert Scott (African-American male) was the one that made the decision to terminate him, not Jayson Kielar (white male) since Kielar had written a letter of recommendation for Burden after he was terminated. Burden testified that he believed he was terminated because he was a man accused of sexual harassment and that somebody had to take the responsibility for the false allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petitions for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 17th day of June, 2013.
The Issue Whether respondent discriminated against petitioner on account of his age in terminating his employment, in violation of the Florida Human Relations Act, Section 760.10 et seq., Florida Statutes (1989)?
Findings Of Fact On July 3, 1989, when he was fired, Neal C. Currow, who was born on January 20, 1927, was by far the oldest employee (T.180) at the Panama City Marine Institute, (PCMI) a non-profit corporation that contracts with the Bay County School Board to provide alternative education programs; and with co- respondent Associated Marine Institutes, Inc. (AMI) to rehabilitate juvenile delinquents or furnish other services for young people. AMI "consists of" (T.225) or "operates" (T.226) 28 schools or institutes like PCMI, of which 13 are in Florida. AMI contracts with the Department of Health and Rehabilitative Services (HRS) to provide services, then subcontracts with its constituent schools. AMI has "central bookkeeping . . . all the payroll is done in Tampa." T.228. But AMI does not maintain complete personnel files on each employee centrally. A "40 year Water Safety Instructor Trainer with the American Red Cross," (T.181) Mr. Currow also holds a "100 ton Master's license for . . . Auxiliary Sail," id., issued by the U.S. Coast Guard. After 18 years as an independent building contractor, he became a junior college teacher and "started all of the building programs for the Gulf Coast [Junior] College." Id. Mr. Currow wears a hearing aid, but he still does aerobics five days a week. Before he went to work for PCMI as a paid employee on September 29, 1980, Mr. Currow had worked as a volunteer for approximately a year, donating money and the use of his motor home, as well as time. A "stable employee, he had all the knowledge . . . [and was] relied on for information . . . [about] how to do things." T.139. Other employees looked up to him and the children respected him more than most of the other teachers. Id. At PCMI, he suffered the gibes of Jack Ross, George M. "Mike" Larson, who was director of operations at the time, Mr. Larson's successor, with apparent good humor. In staff meetings, Messrs. Ross and Larson referred to him as "the old man" and "the old fossil." T.140-1. When Mr. Larson did "his hearing aid thing" (T.140), i.e., telling Mr. Currow to "turn it up Neal, or turn it down, Neal, or something referring to it . . . Jack would laugh." T.140. Danny Grizzard referred to Mr. Currow as "the old man" five or ten times a week, sometimes behind his back, and frequently asked questions like "Does Neal have his hearing aid turned up?" T.121. Danny Grizzard is "in his 40's" (5.12) and Jack Ross is "[m]aybe a couple of years younger." Id. As seamanship and vocational instructor at PCMI, Mr. Currow taught sailing and woodworking. T.30. He also had duties as a "Deep Sea Captain" (T.615) and "did all the training of the staff in aquatics." Id. He regularly took student teams to sailing regattas. Petitioner chaperoned "more student trips that anybody [else] in the institute. In fact, [he] taught about student trips at . . . staff conferences every year." T.172. On such trips and otherwise, PCMI students required supervision, an institute policy that was "stressed continually." T.221. The policy is that "[c]hildren should remain within the eyesight of the staff that they're assigned with," (T.17) but the policy was not always followed. T.105, 158. On overnight trips, official policy specified that the ratio of students to staff should not exceed 5 to 1. Petitioner's Exhibit No. 1, but compliance with this policy, too, was a sometimes thing. The Early Years As executive director of PCMI from March of 1983 to August of 1988, Larry Schmidt spoke to Mr. Currow about supervising children at least twice. Early on in this five-and-a-half-year period, on two occasions, students under petitioner's supervision reoprtedly misbehaved, both times at Etheridge Marina in Panama City. Once students smoked in the bathroom there and another time there "was a theft . . . [of] sodas or something," (T.221) or so Mr. Schmidt heard. Mike Larson, PCMI's Director of Operations for approximately a year ending in the middle of March 1989, testified that petitioner "would become insubordinate with me." T.214. He also testified: "[H]is students might be out on the dock and he would be in his classroom, okay, out of his supervision. There's other times, one case in memory, the students was in his classroom and he was next door at a business getting parts." T.213. (Of course, testimony that something "might be" cannot establish what in fact occurred.) Mr. Larson spoke to Mr. Currow about supervising the students on "several occasions." T.213. Jack K. Ross succeeded Mr. Schmidt as PCMI's Executive Director, approximately half way through Mr. Larson's tenure as operations director. Mr. Ross remembered an occasion in August of 1988 when Mr. Currow was in his classroom while "the kids were outside in the back yard without a staff member" (T.39) and another time when "there were kids out there on the dock . . . [and petitioner was in the seamanship] room getting fishing gear." T.39. On the latter occasion, Mr. Ross testified, he "walked into the seamanship room and I said, 'look Neal, you need to be with your kids', and he said, 'well, I can't be in two places at one time.' And I said, 'well then, you need to bring your kids with you in the class and do it as a group.' And at the staff meetings I reiterated the supervision on a couple of occasions." T.39. On at least one other occasion, Mr. Ross spoke to Mr. Currow individually about supervising children. Written Expectations Like Mr. Larson, Mr. Ross felt Mr. Currow was insubordinate at times. After Mr. Ross spoke to O.B. Standard, AMI's vice-president of operations, about petitioner, Mr. Standard visited PCMI, where he spoke further with Mr. Ross "worked with . . . [Mr. Larson] on his people skills" (T.51); and "had a nice conversation [with Mr. Currow] . . . for two or three hours . . . about supervision [and] everything else you could imagine." T.190. At Mr. Standard's suggestion, Mr. Ross then wrote Mr. Currow this memorandum, dated November 28, 1988: Neal, as a veteran staff member at PCMI, you are a vital part of a very elite team. Your commitment to PCMI and the kids over the past 10 years is of the finest standards. Your hard work and dedication has made you a legend within PCMI. As you are aware, there have been a few changes at PCMI over the previous months. As a professional, I am soliciting your help in supporting me with some of these often difficult changes. There comes a time in everyone's life when we have to stop and decide whether we can adapt and change, or whether we need to step down to reach a new personal challenge. Should you decide to remain with PCMI and continue using your expertise towards helping the troubled youth of Bay County, there are a few expectations I ask that you must consider. Below I have outlined what I expect from every member of the PCMI staff to continue to make PCMI a winning team. Supervision--a maximum of 7:1 ratio of students to staff member. You are to remain with the students you are assigned. Everything during the course of the day that you are involved with, should be done with every member of your class. Never separate the class and put yourself in a position where you cannot intervene with a situation. Negative comments--to display teamwork and integrity among the kids, we cannot expose ourselves as being negative around the students. Talking negative around the students about other staff members is not acceptable behavior. As a member of the PCMI team we are being observed the community 24 hours a day. When comments are made concerning the institute, they should always be made with PCMI's best interest at heart. Supporting the D.O.--The Director of Operations is the conductor of the orchestra. If he is not supported by the rest of the team, then the kids suffer. As the Executive Director I will not allow the kids to suffer. It is your responsibility to support the Operations Director if you are to remain a part of the team. Insubordination--insubordination is not accepting authority. As a captain you know that every member of your crew cannot give orders to control the boat. You expect every crew member to lend a hand and accept orders to ensure the success of the cruise. The same is true at PCMI. Insubordination is not acceptable at PCMI. These are the only changes I have made that I think you should re-evaluate. What I am talking about are values. Values are what we are trying to teach the kids. If we do not display them, then we are being hypocritical with the students. Neal, we need you at PCMI, and I sincerely hope you decide to personally accept these challenges and join the team again. Should you decide to continue with PCMI, and I hope you do, I and the rest of the PCMI team are willing to help you work on these problem areas. If this is asking too much, then I understand and I wish you the best of luck in the future. Respondent's Exhibit No. 3. Aside from this memorandum, no writing in respondent's personnel file made mention of any problems supervising students. T.50. Not long after the memorandum was written, PCMI sent Mr. Currow to Dallas with five or six students to pick up a sailboat. (T.193). Single Incident Next Year In years past staff and students alike had attended regattas on St. Andrew Bay as spectators when the PCMI team Mr. Currow coached participated. T.20. Again in 1989, the PCMI team won the regatta. But, when at least one instructor asked to take her students to watch, Danny Grizzard, who had taken over from Mr. Larson as operations director on March 6, 1989, had denied permission. Mr. Currow and seven PCMI students were together day and night during the regatta, which began on the last Monday in June and finished the following Thursday, June 29, 1989. At the banquet and awards ceremony with which the regatta concluded, Mr. Currow told Mr. Grizzard that "he and the kids were going out for ice cream with one of the other teams and that he was going to spend the night [with the students on a sailboat anchored] at the park." T.62. One of the young sailors in petitioner's charge that night, Shane Hernandez, lived on the same street as Fran, petitioner's "lady friend." At least as early as the banquet, there was talk of watching television at Shane's house. After the banquet and after ice cream, petitioner acquiesced, taking the students to Shane's house, where they found "the lights on . . . and the cars . . . there." T.171. While the others waited outside in the van, Shane went inside ostensibly to learn, as respondent had asked him to find out, if it would be "okay for [them] to watch TV." T.171. Shane reappeared saying it was "okay," and petitioner let the other students out of the van, saying he would be right back. Only later did Mr. Currow learn that neither Shane's parents nor any other adult had been at home when he left the children there. T.207. After dropping the students off at the Hernandezes', he drove "two doors down" "probably around 75 yards" (T.13) to his friend's house, parked and went inside. Before the awards banquet, Mr. Currow had gotten word that his mother was "in the hospital in Pensacola again, and . . . [had] a blood clot in her leg." T.170. Using Fran's telephone, he spoke to a hospital nurse in Pensacola. Fifteen or twenty minutes after dropping the children off, he started for the Hernandez home on foot. The students met him before he reached the house, asking for something to drink. Evidently Mr. Hernandez's girlfriend, who arrived at the Hernandez house shortly after the children did, (T.136) had nothing to offer. After Fran served the boys soft drinks, Mr. Currow drove them back to the sailboat where they all spent the night. Friday morning they returned to PCMI. Petitioner Discharged The next day Danny Grizzard telephoned Shane Hernandez. In response to his questions, Shane told him that the students had been unsupervised for 15 or 20 minutes. Immediately after talking to Shane, he telephoned Mr. Ross, and relayed the news. The next Monday, a day off for petitioner, Mr. Grizzard summoned him to PCMI's offices, where he and Jack Ross told him he no longer had a job. "Neal, you['ve] finally done it," (T.169) Mr. Ross said. Perplexed, Mr. Currow did not realize what he was talking about at first. Then he or Mr. Grizzard told him of the report that the children had been left unsupervised for 15 or 20 minutes, but nothing was said about his having sole supervision overnight of seven (rather than five or less) students, a ratio his supervisors had countenanced. Learning that Mr. Currow had resigned or been discharged, students prepared a petition which stated, in part: "We feel it is unfair that the most valued and loved instructor at PCMI be punished because he trusted us." Respondent's Exhibit No. 5. The petition was signed by 27 students, perhaps all of the students at PCMI. (Eric Hernandez, Shane's father, testified for petitioner at hearing.) Younger Men Hired The preceding Thursday (the day of the awards banquet), PCMI had hired Eddie Prevost, at the time 27 or 28 years old, to instruct in scuba diving and to do woodworking. "He did some vocational work, that was his background." T.34. Mr. Prevost, who, when hired, filled a newly created position, took over petitioner's duties as vocational instructor, after petitioner was discharged. The vacant slot created by petitioner's termination was filled by 25- year-old John Penland, who took over petitioner's duties as seamanship instructor. To the extent the place Mr. Currow had held in the organization was filled, younger men took his place. PCMI "had additional funding in July and . . . split the position into two positions . . .." T.74. PCMI "replaced [petitioner] with a vocational instructor and a seamanship instructor." Id. Some time after the discharge, PCMI proposed to petitioner that he continue training staff in aquatics on a contract basis, but petitioner turned down this offer to work two weeks a year for $75.00 a day. T.177. At no time after July 3, 1989, did AMI or PCMI offer petitioner any other employment. T.176. Nobody was hired to train staff in aquatics, as far as the evidence disclosed. Incident Was Pretext AMI and PCMI attach understandable importance to supervision of children for whom they are responsible. Yet, as far as the record shows, PCMI has never terminated any other employee for failure to supervise students. T.244. This is so even though it "was not unusual" (T.105) at PCMI for students to be out of sight of the instructors responsible for their supervision. T.158, 176. Sometimes as many as 14 students would be assigned clean-up out of doors (as punishment) and left without supervision, except for checks every 40 minutes or so. T. 106, 142. Certain staff members frequently permitted children to walk between the PCMI campus and the civic center unsupervised. These facts were known to some, probably all, supervisory personnel. Between November of 1988 and February 1, 1991, some of the 27 other schools that, together with PCMI, comprise AMI discharged a total of 43 employees citing problems supervising children. Respondent's Exhibit No. 7. The severity and frequency of such problems are not a matter of record, however, and nobody who had worked nearly as long as petitioner had was terminated for this reason. Id. Respondents showed that, of the 44 people discharged for student supervision problems during this period by all 28 schools, petitioner was the oldest: eight others were over 40 years old and four of them were also over 50. Respondent's Exhibit No. 7. The fact that Mr. Currow left the sailing team unsupervised for 15 or 20 minutes at the Hernandez house was not the real reason for his discharge, although, as petitioner himself conceded, Respondent's Exhibit No. 4, this lapse was a breach of institute policy for which discipline was appropriate. Messrs. Ross and Grizzard did not themselves view the incident as an adequate reason to discharge petitioner. Petitioner's dismissal was out of keeping with past practice at PCMI. His firing came as a genuine and understandable surprise to him and others, and was viewed by virtually everyone other than the decision-makers as an injustice. E.g., Respondent's Exhibit No. 5. The reaction to his discharge reflected how drastic the departure from ordinary practice was, and how implausible the reason assigned for the termination was.
Recommendation It is, accordingly recommended that the Florida Commission on Human Relations enter an order requiring respondents to reinstate petitioner (or make an appropriate award of front pay) and award back pay, attorney's fees and costs; and, in the event the parties cannot agree on the details of relief, that the Commission remand for further hearing as necessary. RECOMMENDED this 14th of October, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7301 With respect to petitioner's proposed findings of fact Nos. 1 and 2, Mr. Currow was a paid employee for less than nine years. Petitioner's proposed findings of fact Nos. 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, and 21 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except for the date. With respect to petitioner's proposed findings of fact Nos. 6 and 8, somebody else was sent to help at one point. With respect to petitioner's proposed finding of fact No. 16, no such termination occurred after November of 1988, except for Mr. Currow's. With respect to petitioner's proposed finding of fact No. 19, the evidence did not show that the hearing impairment was age related. Respondent's proposed findings of fact Nos. 1, 2, 4, 9, 10, 11, 12, 13, 14, 15, 18, 24, 25, 26, 27, 28 and 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 3 and 33, numerous instances of students' going unsupervised were proven, including a 45-minute lapse by Mr. Grizzard. With respect to respondent's proposed findings of fact Nos. 5, 6, 7 and 8, nobody present at the time testified to these events. With respect to respondent's proposed finding of fact No. 16, the letter did not warn "that any further occurrence . . . would result in disciplinary action or termination." With respect to respondent's proposed finding of fact No. 17, it was not shown this was attributable to supervision as opposed to insubordination problems. Respondent's proposed findings of fact Nos. 19 through 23 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 29, petitioner was not offered work in a residential program. With respect to respondent's proposed finding of fact No. 31, Prevost was hired before July 3, 1989. With respect to respondent's proposed finding of fact No. 32, Penland assumed some of petitioner's duties. COPIES FURNISHED: Ronald M. McElrath, Executive Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Rhonda S. Clyatt, Esquire P.O. Box 2492 Panama City, FL 32402 E. John Dinkel, III, Esquire Macfarlane, Ferguson, Allison & Kelly P.O. Box 1531 Tampa, FL 32601 Dana Baird, Esquire Harden King, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
