Conclusions Respondent Orange County School Board, pursuant to the September 22, 2010 order of Administrative Law Judge Susan Harrell, hereby accepts jurisdiction of this matter. Based upon the advice of counsel, Respondent Orange County School Board hereby enters a final order rejecting all bids in this matter so as to issue a new invitation to bid for provision of occupational and physical therapy services. This action is being taken to clarify standards by which the SCHOOL BOARD will award the bid. DONE AND ORDERED THIS 14" Day of December, 2010. THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA Filed December 17, 2010 4:16 PM Division of Administrative Hearings APPEAL OF FINAL ORDER This Order may be appealed by filling two copies of a notice of appeal accompanied by a filing fee, as provided in §120.68, Fl. Stats. and Fla R.App.P. 9.100(b) and (c) within thirty (30) days of the rendition of this final order. CC: Administrative Law Judge Susan Harrell Counsel of Record
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Remedy provides staffing services for temporary employment positions with a variety of independent business clients. The relationship between Remedy and its clients is governed by contracts it has entered into with those clients. Towards that end, Remedy solicits applications and/or maintains an applicant pool of people known as “associates” for temporary work assignment to Remedy’s clients. However, Remedy does not operate or manage its clients' business or employment decisions. At the commencement of an associate’s staffing relationship with Remedy, all associates are required to review Remedy’s policies and procedures, including its Discrimination and Harassment Policy. Under that policy, a Remedy associate who believes he or she has been discriminated against while performing an assignment for a Remedy client is encouraged to notify Remedy of the perceived discrimination. After notification, Remedy investigates and advises the client of its findings. After investigation, if a Remedy associate engaged in misconduct while at a temporary assignment, Remedy is entitled to take disciplinary action against the associate, including removal of the associate from the assignment. However, Remedy cannot take disciplinary action against a direct employee of the client, nor can it require the client to take disciplinary action against the client’s direct employee. Similarly, if a client demands that a Remedy associate’s assignment be terminated, Remedy has no authority to second-guess that decision or to refuse to terminate the associate’s assignment with the client. Importantly, when a Remedy associate’s assignment with a client is terminated early by the client, the associate’s relationship with Remedy remains in place unless and until either party expressly advises the other that the relationship is being terminated. In this case, Remedy had a contract with Trane, a manufacturer of air conditioning units. Under its contract with Trane, Trane notified Remedy of temporary assignments that needed to be filled at its manufacturing plant in Panama City, Florida. Upon such notification, Remedy identified qualified associates for Trane’s consideration for work at its plant. On or about February 8, 2013, Petitioner submitted an application to Remedy, seeking consideration for assignment to an open temporary position with Trane. He was selected by Trane for the position and began working as a Production Technician for Trane on March 4, 2013. In performing the duties and responsibilities of his position as a Production Technician, Petitioner was subject to the supervision of Trane management, including Group Leader, Shirley Gunn, and Operations Leader, Jesse Arnold. On or about May 30, 2013, Petitioner advised Remedy’s Staffing Coordinator, Jaime Chapman, that he needed to take medical leave due to a growth on his finger. The growth was unrelated to his employment at Trane. Petitioner was granted leave by Trane. On June 17, 2013, while on medical leave, Petitioner provided a doctor’s note to Ms. Chapman, which indicated that Petitioner was capable of returning to work in a light-duty capacity. The note imposed various restrictions on Petitioner’s permissible work duties, including, but not limited to, “no machine, manipulator, compressor, wall rear, no lifting above 15 lb.” Ms. Chapman passed Petitioner’s leave request to Trane. However, Trane's policy did not permit light duty assignments for non-work related injuries or medical issues and the request was denied by Trane. There was no evidence that Trane’s policy was based on discrimination or that Remedy had any input or control over Trane’s light-duty policy. As such, Petitioner’s allegations that denial of such light duty was discriminatory should be dismissed. Ms. Chapman advised Petitioner of Trane’s policy on light-duty assignments and explained to him that he must remain on leave until he was medically cleared to return to full work duties. On or about June 27, 2013, Petitioner provided Ms. Chapman with a new doctor’s note, stating that Petitioner had undergone surgery for his medical condition, and would be unable to work in any capacity from June 27, 2013, until July 1, 2013. Four days later, on July 1, 2013, Petitioner provided Ms. Chapman with medical clearance to return to full work duties. That same day he returned to his job as a Production Technician at Trane. Clearly, neither the growth on Petitioner’s hand nor its subsequent medical treatment significantly impaired a major life activity of Petitioner since he recovered and returned to work. Moreover, there was no evidence that demonstrated Petitioner’s medical issue with his hand or treatment thereof constituted a disability that significantly impaired a major life activity or was seen as such by Respondent or Trane. Given this lack of disability, Petitioner’s allegations regarding discrimination based on disability should be dismissed. At 2:00 a.m., on July 2, 2013, Ms. Chapman received an email from Ms. Gunn, the Trane manager with supervisory authority over Petitioner, indicating that during the July 1 night shift, Petitioner and Remedy Associate Tarmecia Jackson, who is Black, were involved in a verbal altercation with Ms. Jackson calling Petitioner an “asshole.” In the email, Ms. Gunn requested that Ms. Chapman counsel Petitioner as well as Ms. Jackson regarding the need for each of them to improve their level of professionalism during their co-worker interactions. The evidence demonstrated that the name-calling incident was only a verbal feud between co-workers. There was no evidence that demonstrated such name-calling was discriminatory or had its aegis in discrimination. Ms. Chapman complied with Ms. Gunn’s request, and conducted separate counseling sessions with Petitioner and Ms. Jackson. During Ms. Jackson’s counseling session, Ms. Chapman advised her that the conduct she exhibited during the July 1, 2013, incident was unacceptable and would not be tolerated going forward. In response, Ms. Jackson apologized for her conduct and assured Ms. Chapman that she would comply with Trane’s conduct requirements going forward. During Petitioner’s counseling session, Ms. Chapman advised him that he must refrain from arguing with co-workers at the Trane worksite, and that if he had any additional issues with co-workers, he must report those issues to Remedy. Petitioner accepted Ms. Chapman’s counseling, without objection. At no time during the counseling session did Petitioner express a perception that he was being treated unfairly or discriminatorily. On July 12, 2013, Ms. Chapman received a second email from Ms. Gunn stating that Petitioner and Ms. Jackson were once again involved in an altercation. However, in the latest instance, Ms. Gunn determined that Petitioner was responsible for instigating the conflict, noting that his conduct had left Ms. Jackson “in tears.” The email went on to state that when Ms. Gunn attempted to counsel Petitioner in the wake of the second incident, Petitioner continually interrupted her and refused to allow her to proceed with the counseling. On the morning of July 12, 2013, in addition to reviewing Ms. Gunn’s email, Ms. Chapman received a telephone call from Trane’s Operations Leader, Mr. Arnold, who advised her of Trane’s decision to request the termination of Petitioner’s assignment. Prior to the start of Petitioner’s shift on July 12, 2013, Ms. Chapman called him and notified him of Trane’s decision to end his assignment. The evidence was clear that Remedy did not participate in and was not responsible for Trane’s decision to terminate Petitioner’s assignment with it. Moreover, the evidence was clear that Remedy did not make any adverse decision regarding Petitioner’s employment with Trane.1/ Remedy simply advised Petitioner of Trane’s termination. In fact, in light of Petitioner’s continuing status as a Remedy associate, Ms. Chapman advised Petitioner that he should continue to update Remedy regarding his interest and availability for future assignments, and likewise, Remedy would continue to consider him for future assignments with Remedy clients. In essence, Petitioner’s status with Remedy did not change. Based on these facts, Petitioner failed to establish that Remedy discriminated against him when it informed him of Trane’s decision to terminate his assignment and the allegations in regards thereto should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of December, 2014.
Findings Of Fact Petitioner, Rhonda K. Lenfest, was hired by respondent, Orange County Emergency Services, Inc., on June 13, 1979, in the position of emergency medical services communicator. Her employer is under the control and supervision of the Orange County oar of County Commissioners. Lenfest received a gunshot wound to the abdomen in late 1974 or early 1975. As a result, she is paraplegic and required to use a wheelchair. Lenfest was one of seven communicators employed by respondent. The duties of a communicator included communication by radio to emergency vehicles and hospitals from respondent's headquarters in the Orange County Courthouse. The communications center was staffed twenty-four hours per day, seven days per week. Those employees with the most seniority got the best shifts, and any last minute changes in shifts caused by illness or vacation were generally filled by those with the least seniority. The seniority basis was fully explained to Lenfest when she was initially hired. When first hired, Lenfest was under the impression that her supervisor would schedule her shift work so that twice a week therapy sessions could be continued, and arrangements made to provide care for her seven year old child. She was initially assigned to the 9:00 a.m. - 5:00 p.m. and 8:00 a.m. - 4:00 p.m. shifts. However, during the last four months of her employment she was frequently required to man the 1:00 a.m. - 7:00 a.m. shift when she was the only employee manning the communications center. This as due to a number of shift schedules caused by vacations, illnesses and schedule changes requested by other employees, and Lenfest having the lowest seniority. At various times, Lenfest was observed sleeping on the job. This was confirmed by several independent witnesses. She attributed this to bad shift hours, lack of sleep, and an "understanding" that napping at work was permissible. According to activity logs introduced by petitioner, she was late to work seventeen times between June 13 and November 10, 1979, which was more than any other employee in her section. She attributed this to a difficulty in finding a parking place around the courthouse. On each occasion that she was late, the on-duty employee could not leave his or her shift until Lenfest reported to her station, was briefed as to any existing problem areas, and actually assumed her duties. County personnel policy provides that "(e)xcessive, or habitual lateness will not be tolerated", and that "if such occurs, disciplinary measures . . . will be implemented." Lateness is defined as "not being able to start duty on time." On Saturday, November 10, 1979, Lenfest's immediate supervisor, John Spurlock, presented her with a supervisor counseling form dated October 30, 1979. It indicated she was being counseled for "sleeping on the job, security of building, not paying attention to records and logs, on county phones long periods of time for personal use, being late for work and attitude". At the bottom of the form, Spur lock noted that "(i)f these problems listed above can be solved Rhonda will be the same good worker that she was in the beginning." This was the sixth or seventh occasion on which Lenfest had been counseled. After being presented with the form, Lenfest called her supervisor "a damn liar, immature", "no good", and "lower than a snake's belly". The comments were loud enough for other persons in the area to hear. Spurlock attempted to calm Lenfest, but after these efforts were unsuccessful, he told her she could go home for the day. He then asked her to sign the counseling form. Lenfest said "you make me sick" and tore up the form into four pieces. Spurlock then told her "unless you can prove otherwise, you (can) consider yourself fired." On November 11, 1979, Lenfest was informed by telephone that she should contact her overall supervisor prior to returning to work. She failed to contact him the next working day (November 12) and did not report to work. On November 14, 1979, Lenfest was formally terminated by her manager with such termination to be effective on November 13. Under the Orange County personnel policy manual, a temporary employee is always on probation. Once an employee achieves permanent status he or she is on probation for the first six months. While on probation, an employee can be terminated without any notice or cause. Lenfest became a permanent employee on October 27, 1979, but still was on probation when she was terminated less than a month later. Therefore, Lenfest had no recourse to the grievance procedures afforded permanent status employees of the County. Her reclassification to permanent status had been made two days earlier than another employee so that she would have seniority over that employee. A non-handicapped employee, Ralph S. Bailey, was fired by respondent in 1979 for excessive tardiness. After talking with the personnel department and explaining what had occurred, he was rehired within a few days. Another non-handicapped employee, Brady Parsons, was counseled in 1979 for sleeping on the job. Respondent received no federal funds for the purpose of providing, aiding, assisting in or defraying the expenses of employment.
Recommendation Wherefore, in consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Rhonda K. Lenfest be DENIED. DONE and ENTERED this 20th day of September, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Service, Inc. P. O. Box 1790 Orlando, Florida 32802 John A. Gehrig, Jr., Esquire P. O. Box 3068 Orlando, Florida 32802 Robert Woolfork, Executive Director The Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent discriminated against Petitioner on the basis of her age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is a Caucasian, female who, at the time of the alleged employment discrimination, was 42 years old. Petitioner was an employee of Kelly Services, an agency that supplied temporary employees to Respondent. At the time of the alleged incident, Petitioner was filling the position of material handler in Respondent’s warehouse. Her job title, pay, and hours worked did not change during her period of employment with Kelly Services at Respondent's warehouse. She received her pay from Kelly Services. When she decided to terminate her employment at Respondent's warehouse, she advised Kelly Services that she was quitting, not Respondent. There were three or four employees at the warehouse who were employees of Respondent. In addition, there were several temporary employees at the warehouse. No evidence was presented as to the total number of employees employed on either a permanent or temporary basis by Respondent. Petitioner began her employment with Kelly Services at Respondent's warehouse in late August 2002. For approximately two weeks prior to October 23, 2002, Petitioner was being trained to operate a forklift. She was the only temporary employee being so trained. On October 23, 2002, Jason Titra (Titra), a warehouse employee of Respondent, commented to Petitioner that it was easier to train a young person to operate a forklift than an older person. He analogized that "if you were training his niece and his grandmother to operate a forklift, who do you think would learn more quickly?" Petitioner was offended by this comment, thinking it derogatorily referred to her age. Titra was not authorized to make employment decisions by Respondent although he exercised supervisory authority over temporary employees, including Petitioner. Following the October 23, 2002, comment made by Titra, Petitioner refused to train to operate the forklift even though encouraged to train on the forklift and given the opportunity to do so by Respondent’s management representative. On November 18, 2002, Tim Staab (Staab), Respondent’s operations plant manager, sought out Petitioner and asked why she wasn’t training to operate the forklift. She told Staab about the comment made by Titra. Respondent immediately investigated the incident; as a result of Respondent’s investigation, Titra was disciplined for making inappropriate comments. Titra attempted to apologize to Petitioner; however, Petitioner refused to accept his apology. The October 23, 2002, comment by Titra is the only basis for Petitioner’s claim of age discrimination. There is no evidence that Titra repeated the comment or any similar comment, nor did any other employee. Nor is there any suggestion that the work environment became hostile. Petitioner acknowledged that Staab “tried to make it right”; Petitioner was repeatedly given the opportunity to train to operate the forklift, but she refused. Neither Petitioner’s pay or hours changed after the incident was reported. Late in January 2003, Petitioner voluntarily left the employment of Kelly Services and her assignment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order granting Respondent's Motion to Dismiss and finding that Petitioner failed to present a "prima facie" case. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frances Ann Ratliff 1101B North Hoagland Boulevard Kissimmee, Florida 34741 Jeffrey L. Thompson, Esquire Constangy, Brooks & Smith, LLC 577 Mulberry Street, Suite 710 Macon, Georgia 31201 Robin Sheridan Parcel Direct, LP N63W23075 Main Street Sussex, Wisconsin 53089 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Lowe's Home Centers, Inc. (“Lowes”)1 committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),2/ by discriminating against Petitioner based on her gender or national origin (Hispanic) in its allowance of a hostile work environment, or by discharging Petitioner from her employment in retaliation for engaging in protected conduct.
Findings Of Fact Lowes is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. In November 2004, Petitioner, a Mexican-American female, was hired by Lowes to work at store number 2365 in Gainesville as a Commercial Sales Associate (“CSA”) in the Commercial Sales department, which serves contractors and large institutional customers. Petitioner’s primary duty was to assist customers in the selection, demonstration and purchase of products. At the time she was hired, Petitioner received from Lowes copies of the following documents: Lowes' Code of Ethics, Lowes' Equal Employment Opportunity Policy, Lowes' No Harassment Policy, and Lowes' Performance Management Policy 315 setting forth the company’s standards of conduct and discipline. These policies were in effect during the entirety of Petitioner’s employment at Lowes. Lowes' Code of Ethics specifically provides that employees “must maintain the confidentiality of information entrusted to them by Lowes or its suppliers or customers,” unless such disclosure is authorized by the company’s lawyers or is required by law. Lowes' Equal Employment Opportunity Policy provides that all reports and investigations of harassment “will be treated confidentially to the extent possible, and with the utmost discretion.” Lowes' Performance Management Policy 315 provides that unauthorized disclosure of company information is a “Class A violation,” which will normally subject an employee to immediate termination on the first occurrence. Petitioner’s allegations of harassment and hostile work environment center on a single Lowes co-worker, John Wayne Edwards. Mr. Edwards was another CSA in Commercial Sales. He had no supervisory authority over Petitioner and exercised no control over the terms and conditions of Petitioner’s employment. Petitioner has not alleged that Mr. Edwards subjected her to any unwanted sexual comments, sexual touching, or sexual advances. Petitioner’s factual allegations against Mr. Edwards involve three incidents. The first incident, in September 2007, was an argument between Petitioner and Mr. Edwards at work. Petitioner accused Mr. Edwards of taking a customer file from her. Mr. Edwards denied taking the file, pointing out to Petitioner that he had no reason to take her file. If Mr. Edwards wanted the information contained in Petitioner’s customer file, he could simply take it from the Commercial Sales department’s computer. Petitioner called Mr. Edwards a liar. Mr. Edwards denied being a liar. Petitioner said, “I’m going to get you.” Mr. Edwards asked Petitioner what she meant by that statement, and Petitioner called him coward. Mr. Edwards then said to Petitioner, “If you were a man, me and you’d go across the street right now and settle this.” Petitioner reported the incident to Lynette White, the Human Relations (“HR”) manager for Lowes store number 2365, alleging that Mr. Edwards had threatened to beat her up in the parking lot.4/ Ms. White investigated the matter, interviewing Petitioner, Mr. Edwards and two or three other CSAs who witnessed the incident. Ms. White concluded that Mr. Edwards had not threatened any physical harm to Petitioner, but that Mr. Edwards’ statement was nonetheless inappropriate. She counseled Mr. Edwards to take care in his workplace conversations so that no one could construe anything he said as a threat, and to avoid contact with Petitioner whenever possible. The second of the three incidents occurred on or about October 2, 2007. According to Petitioner, she was standing near a filing cabinet in Commercial Sales. Mr. Edwards was “talking and talking and talking,” “bragging about all sorts of stuff.” Petitioner told Mr. Edwards not to talk to her, but he continued in a very loud voice. Then, when he was finished bragging and talking, Mr. Edwards rushed toward the filing cabinet “like a football player” and hit the cabinet hard. Petitioner testified that Mr. Edwards hurt himself and ran and told management. Store managers came running to make sure that Petitioner was not hurt in the incident. Mr. Edwards had no recollection of such an incident. He stated that there are three CSAs and an assistant in an area that is 12 feet long and 42 inches wide, with a filing cabinet that is in use directly behind the computer work stations. It is unavoidable that people moving through such a space will touch or bump one another. Mr. Edwards was positive he would have excused himself if he inadvertently bumped Petitioner, and denied ever doing anything that could be construed as “charging” at the filing cabinet with the intention of hurting or frightening Petitioner. Ms. White investigated this incident, interviewing Petitioner, Mr. Edwards, and other persons who were in the area when the incident allegedly occurred. During her interview with Ms. White, Petitioner conceded that neither Mr. Edwards nor the file cabinet touched her. Ms. White asked Petitioner to show her how the incident occurred, using a file cabinet in Ms. White’s office. Petitioner was unable to show a scenario that, in Ms. White's words, “added up to someone coming towards you to attack you.” The two other employees who had been in the area saw nothing to indicate that Mr. Edwards made contact with or sought to harm Petitioner. Ms. White concluded that, at most, Mr. Edwards accidentally bumped the file cabinet while Petitioner was nearby. As to the third incident, Petitioner alleged that on three or four occasions in early 2008, Mr. Edwards approached her and, apropos of nothing, announced, “We need to build a fence around the Mexican border.” Petitioner testified that these bigoted comments were clearly intended to intimidate her and cast aspersions on her heritage. Petitioner took this complaint to Karla Daubney, then Lowes' HR district manager. Ms. Daubney investigated Petitioner’s complaint by interviewing Petitioner, Mr. Edwards, and other employees in Commercial Sales. Mr. Edwards denied making a comment about “building a fence around the Mexican border.” He testified that the only possible source for Petitioner’s allegation (aside from sheer invention) was a conversation he had with a male co-worker about the Iraq War. Mr. Edwards had stated his opinion that the United States would be better off bringing its soldiers home from Iraq and using the savings to shore up our borders with Mexico and Canada.5/ He had no idea whether Petitioner was within earshot during this conversation, and denied ever making anti-Mexican comments, whether or not they were aimed at Petitioner. Mr. Edwards testified that this allegation was particularly hurtful because he is the adoptive father of two Mexican children, a brother and sister. At the time Mr. Edwards adopted them, the girl was three years old and the boy was nine months old. The children are now adults. Mr. Edwards’ daughter is a surgeon, and his son is in the air-conditioning business. After her investigation, Ms. Daubney concluded that Petitioner’s allegations were unsupported by the evidence. Mr. Edwards was not disciplined for this incident. At the final hearing in this matter, Petitioner and Mr. Edwards testified about all three incidents. Petitioner produced two witnesses, neither of whom witnessed any of these events first-hand or had any clear recollection of the incidents as related by Petitioner. No witness other than Petitioner characterized Mr. Edwards as anything other than a good Lowes employee and a solid citizen. Far from allowing a hostile work environment, Lowes diligently investigated every accusation made by Petitioner. Mr. Edwards was by far the more credible witness, and was genuinely puzzled as to why Petitioner had selected him as the continuing focus of her ire. The evidence indicated that Petitioner had job performance issues that predated her odd vendetta against Mr. Edwards. She received an “Initial Notice” on November 6, 2006, for failure to follow up on various customer orders. On May 2, 2008, Petitioner received a “Final Notice,” the last step in Lowes' progressive discipline system prior to termination. Petitioner had used Lowes' confidential customer contact information to telephone a regular commercial customer, Justice Steele, at his home. Shortly after this conversation, Mr. Steele telephoned Charles Raulerson, the manager of store number 2365, to complain about Petitioner’s unprofessional conduct. Mr. Steele followed up the phone call with a letter, dated April 25, 2008, which stated as follows, verbatim: The evening of April 23, at approximately 6:30 P.M., I received a call from Rosie [Chavez] in Commercial Sales when I answered she proceeded to tell me that, she had heard John and I talking earlier. So I asked her what the problem was? At this point she started to tell me I had no right to critique her work, I tried to explain to her that I was quite unhappy that she had lost one order of mine and had mixed up another one in the same week. And had I known she was there I would have spoken to her face to face, at this point she became very argumentative and started telling me how she was the only person who did her job in commercial sales. And her co-workers where [sic] lazy and stupid that they should not even be there, personally I thought this was very very unprofessional on her part. Not to mention calling me at home considering I am in the store almost daily placing orders, getting estimates, etc. In the years I have been doing business with your company I always found the staff to be quite knowledgeable an courtesy I’m surprised that you would allow an employee to act in this manner. I’m aware you do your best to screen employees but if this issue is not addressed I will not continue doing any further business with your company. Thank you for your attention to this matter. In her meeting with Mr. Raulerson about Mr. Steele’s complaint, Petitioner asserted that her boss could not tell her what to do on her own time, and that Mr. Steele was lying about her phone conversation with him.6/ Mr. Raulerson attempted to explain that Petitioner was conducting Lowes business when she called Mr. Steele, and she was therefore a representative of Lowes whether or not the call was placed from the store. Petitioner continued to assert that she could do anything she wanted if she was not physically at the store. Mr. Raulerson issued the Final Notice and transferred Petitioner to the position of cashier in response to Mr. Steele’s complaint.7/ The transfer was a lateral move, involving no change in Petitioner’s employee status or pay. During the meeting at which the Final Notice was issued, Mr. Raulerson reminded Petitioner of Lowes' confidentiality policies and provided her with another copy of Performance Management Policy 315. The referenced Performance Management Policy would have allowed Mr. Raulerson to terminate Petitioner’s employment for her unauthorized use of confidential customer information. However, Mr. Raulerson decided to give Petitioner another chance to salvage her job, away from the Commercial Sales department.8/ On July 25, 2008, Mr. Raulerson received another complaint about Petitioner from Lowes customer Chris Bayne. Mr. Bayne was a registered nurse working in the emergency room at North Florida Regional Medical Center in Gainesville. On July 24, 2008, Petitioner phoned Mr. Bayne at his private cell phone number, which he had given to Lowes two years previously when buying lumber. Mr. Bayne was without knowledge of Petitioner’s grievances against Mr. Edwards, Mr. Raulerson and/or Lowes. Nonetheless, Petitioner caused Mr. Bayne to leave the emergency room in the middle of a procedure to take her phone call. Petitioner solicited Mr. Bayne to write a letter of character reference for her, to be used in a discrimination lawsuit against Lowes. Mr. Bayne had no idea what Petitioner was talking about. In an effort to get her off the phone and get back to his job, Mr. Bayne gave Petitioner his email address and told her to send any information via that route. After work, with more time to think about the call, Mr. Bayne became increasingly disturbed. He wondered how Petitioner had obtained his private phone number and began to worry about identity theft. The next morning, he telephoned Lowes and complained to Mr. Raulerson. Mr. Bayne later sent Mr. Raulerson a copy of the letter that Petitioner had emailed to Mr. Bayne. The letter read as follows: Hi. As many of you already know, I have been demoted to cashier. Mr. Justice Steele wrote a letter to Lowe's. According to Mr. Charlie Raulerson, store manager and Mr. Tom Bragdon, operation manager, Mr. Steele claimed that I called him on his personal time and that I argued with him. I always follow up on my orders. I overheard Mr. Steele tell someone that I lost his order. So I called him up to find out what happened and what is going on. I had informed Mr. Steele that I will be placing a copy of his estimate in front of his file folder because he had not paid for it yet. The copy was still there in front of his file folder. There was no argument. There were a couple of other things that were mentioned in which not a single word was brought up. I asked Charlie Raulerson the store manager for a copy of the letter and he refused to show me the letter because it was Lowe's property. I am defending myself. There is more than what you know is going on. I have been discriminated based on my national origin and my gender now for over eight months at Lowe's #2365 in Gainesville Florida on 13th Street. You are my fifth proof. I am knowledgeable about construction. I graduated from Building Trades. I loved my job and I loved the people. Please submit a character reference to Emily Davis, EEOC Investigator (Equal Employment Opportunity Commission) at Emily.davis@fchr.myflorida.com. For those who do not have e-mail, please mail reference to 2009 Apalachee Parkway, Suite 200, Tallahassee, FL 32301-4857. Tell her everything you know. Do not fear anything. The reference letter is not going to Lowe's. It is going to Emily Davis only. Everything is strictly confidential. Ms. Davis is currently investigating my case #15D200800721. Please keep me in your prayers. In addition, please give a copy of this letter to the prayer group at your church and ask them to pray for me. Please pass the word around because I did not get everyone’s phone number since I was immediately demoted to cashier on May 2, 2008, on a Final Notice. Please ask everyone to e-mail Emily Davis or write to her. Please help me and thank you for your help. Rosie At the hearing, Petitioner testified that she sent this letter to hundreds of people. As the text indicates, most of the recipients were current or former Lowes employees, but many were customers such as Mr. Bayne. None of the recipients had any personal knowledge of Petitioner’s allegations. Petitioner appeared to have no understanding that her actions were in clear violation of Lowes' confidentiality policies, not to mention common sense. Mr. Raulerson asked Ms. Daubney to investigate Mr. Bayne’s complaint. Ms. Daubney interviewed Petitioner in an attempt to understand why she called Mr. Bayne. Petitioner refused to answer Ms. Daubney’s questions. She insisted that her conversation with Mr. Bayne was none of Lowes' business. Mr. Raulerson testified that Mr. Bayne’s complaint provided more than adequate grounds for terminating Petitioner’s employment, but that he decided to give Petitioner yet another chance to turn her situation around and become a productive employee. Shortly after investigating Mr. Bayne’s complaint and learning that Petitioner had used Lowes' confidential business records to circulate her own complaint to hundreds of people, Ms. Daubney received a copy of a memorandum written by Linda Brown, Records Bureau Chief of the Alachua County Sheriff’s Office. Ms. Brown was the supervisor of Nanci Middleton, the wife of Larry Middleton, one of Petitioner’s co-workers at Lowes. Ms. Brown’s memo stated that she had received a telephone call from Petitioner seeking to discuss “an EEOC issue of discrimination” involving Mr. Middleton, and asking to speak with Ms. Middleton. Ms. Brown told Petitioner that it was inappropriate to contact Ms. Middleton at work about an issue unrelated to the Alachua County Sheriff’s Office. Petitioner testified as to her purpose in phoning Ms. Brown. Petitioner sought permission to eavesdrop on a proposed conversation between the Middletons, during which Mr. Middleton would somehow be urged by his wife to “tell the truth” about Mr. Edwards’ “fence around the Mexican border” statements. Petitioner wanted Ms. Brown to join her in eavesdropping on this conversation in order to serve as Petitioner’s witness in her discrimination case. Not surprisingly, Ms. Brown declined Petitioner’s proposition. Ms. Daubney concluded that Petitioner’s telephone call to Ms. Brown violated Lowes' confidentiality policies. In consultation with Ms. Raulerson, Ms. Daubney decided to terminate Petitioner’s employment with Lowes, effective August 8, 2008. The grounds for Petitioner’s termination were repeated customer complaints about Petitioner’s job performance and intrusions into customers’ privacy, and her repeated violations of Lowes' confidentiality policies despite numerous warnings. Petitioner’s position, repeated in her testimony at the hearing, was that Chapter 760, Florida Statutes, gave her the right to “defend” herself in any way she deemed appropriate, and to contact anyone who might help her, regardless of whether they had any knowledge of or connection to her disputes with Lowes. Petitioner refused to acknowledge that any of her actions had been inappropriate. Petitioner offered no evidence to establish that her employment was terminated because of her gender or national origin. Petitioner testified that her firing was unrelated to her national origin or her gender. Petitioner offered no credible evidence that Lowes discriminated against her because of her national origin or her gender, subjected her to harassment because of her national origin or gender, or retaliated against her in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence to support her factual allegations against Mr. Edwards. The evidence did not establish that Mr. Edwards threatened physical harm to Petitioner or made derogatory remarks to Petitioner regarding her national origin. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Lowes for terminating Petitioner’s employment. The evidence established that Petitioner’s First and Second Complaints were devoid of merit. The evidence established that Lowes showed great forbearance in not firing Petitioner well before August 8, 2008.
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 finding that Lowe's Home Centers, Inc., did not commit any unlawful employment practices and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 31st day of August, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 31st day of August, 2010.
Findings Of Fact On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must possess either a welder's certificate or have at least one year's welding experience. Applicants for the position had to be certified as eligible prior to the date of their employment interview. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C. P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C. P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . . Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees). The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination. DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1983. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in the case is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact 1. Petitioner is 32 years old, unmarried, and a 1992 graduate of Auburn University with a degree in business administration. He attended college on a athletic scholarship and was a captain of the football team. 2. Since graduation he has worked extensively with teenagers as a youth development professional with Boys and Girls Club of Central Plorida, as a recreational leader with Orange County Parks and Recreation; as a substitute teacher at Maynard Evans High School, where he worked with physically impaired students; and as a night monitor at The Center for Drug Free Living. 3. On November 27, 2000, Petitioner submitted an Employment Application with the Department of Juvenile Justice seeking the position of Juvenile Probation Officer. 4. As a part of the November 27, 2000, Employment Application, Petitioner indicated that he had not been convicted, pled nolo contendere, or had adjudication withheld on a crime which is a felony or first-degree misdemeanor. 5. On October 30, 2000, Petitioner executed an Affidavit of Good Moral Conduct which states, in part, "I have not committed an act which constitutes domestic violence .. ." 6. As a result of background screening, it was determined that on a January 14, 1990, Petitioner was charged with "Assault 3rd" in Auburn, Alabama, as a result of a meleé involving members of a fraternity and the football team. On February 19, 1990, the charge was dismissed. 7. The background screening also revealed that on November 11, 1995, Petitioner was charged with Battery (Domestic Violence); was arrested on November 29, 1996 (over a year later) for the offense; and had adjudication withheld after a plea of nolo contendere to the offense on February 5, 1997. 8. On February 5, 1997, Petitioner was sentenced to supervised probation for 363 days, required to attend a batterer's intervention program, and charged $115 in court costs. He successfully completed probation. 9. On December 16, 2000, Petitioner wrote the IG stating: This letter is to clarify why I failed to indicate the offenses on the notarized Affidavit of Good Moral Character. I did not indicate the offenses because I thought you are only supposed to write down convictions of a felony or first-degree misdemeanor. I did not know pleading no contest was counted as guilty. Therefore, I thought the circumstances did not fit my offenses. I conversed with a Department of Juvenile Justice employee when applying for the position, and they [sic] informed me that the Department was only looking for felony convictions. They said a misdemeanor arrest will not disqualify me. This is the reason why I failed to indicate the offenses. 10. On January 11, 2001, Petitioner wrote the IG stating: This letter is to clarify the incident that happened on the evening of November 11, 1995 at Heroes Night Club, Orlando, Florida. This incident was between a Ms. Monica Pryor and myself. At the time Ms. Pryor and I were dating. At the nightclub, Ms. Pryor and I got into an argument and exchanged harsh words that resulted in us pushing and shoving one another. Ms. Pryor then left the nightclub with her girlfriends. She called my cell phone to inform me that her girlfriends were taking her to the police station. We talked later that evening and apologized to each other. During the conversation, she let me know that she had filed charges against me and there was a warrant out for my arrest and would drop the charges in the morning. As far as I can recall from our conversation, Ms. Pryor didn't suffer any physical bruising from this incident. This is one incident in my life that I deeply regret. I feel that I was in the wrong place at the wrong time, doing the wrong thing. This incident happened over 5 years ago. Since then, I have experienced healthy relationships without any hostile contact involved. I have been blessed to counsel several young people and I've helped young men from making the same mistake that I made. I believe this experience has made me a better person and has given me a testimony to share with others. In the past 7.5 years, I have worked in child development, education and recreation. I have worked with the Boys and Girls Club of Central Florida, Center for Drug Free Living, Orange County Parks and Recreation, and I am presently employed with Orange County Public Schools. I ama member of the New Church of Faith in Orlando, Florida were I've helped with youth banquets and church activities. If you have any questions about my spiritual leadership and commitment, please call Pastor David Beacham at (407) 296-2664. 11. Petitioner testified that even though Ms. Pryor had told him that she would "drop the charges," he elected to plea nolo contendere just to get the matter behind him. 12. On January 19, 2001, Petitioner submitted a second affidavit of Good Moral Character indicating that his record contained "one or more of the disqualifying acts or offenses .," and circled the reference to the domestic violence statute. 13. Ken Davis, of Maynard Evans High School in Orlando, Florida, submitted a letter which observed that Petitioner was a "diligent and conscientious person." 14. Yvette Johnson, Universal Orlando, an occupational health and safety specialist, submitted a letter in which she characterized Petitioner as an "asset to the troubled youth in the community . . . never failing to instill the values desired by the church." 15. Ruthenia Moses, who has a Master's Degree in Social Work from the University of Connecticut, who has worked as a clinical therapist, and who was, at one time, the second in command of the Orange County Work Release Center, testified that Petitioner has "an amazing ability to relate to young people," was a "kind and sincere individual of good moral character. I highly recommend him to anyone who works with young people." She further testified that "if I had a business serving youth at risk I would want Petitioner on her team." 16. Christine Barbery, who has a Master's Degree in Legal Studies from the University of Central Florida and is employed by Florida Department of Children & Families as a Family Services Counselor Supervisor, reports that Petitioner is "responsible, hard-working," "setting an admirable example," "an excellent candidate for a Juvenile Probation Officer-type position." She worked for the Department of Juvenile Justice from 1995-1997 and Department of Children and Families since 1997. She has worked with Petitioner with young people at Maynard Evans High School and finds him "caring and dedicated." She "has no qualms about Petitioner's qualifications to be a probation officer." 17. Gloria P. Cleary, Recreation Specialist, Orange County Parks and Recreation, in a letter, characterized Petitioner as a "very enthusiastic and responsible person." She had observed Petitioner in his role as a recreational leader at Liberty Middle School. She further indicated that she would not hesitate in hiring Petitioner in the future. 18. Petitioner was guilelessly candid in his testimony. He is remorseful and contrite regarding the 1995 domestic violence incident. He has conducted his life since that incident in such a way that rehabilitation is indubitably demonstrated. He has an obvious desire to work with troubled teenagers as a Juvenile Probation Officer.
Conclusions For Petitioner: Charles Brown, pro se 7251 Minippi Drive Orlando, Florida 32818 For Respondent: Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation It is recommended that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this “Ir day of June, 2001, in Tallahassee, Leon County, Florida. lec 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 10 Filed with the Clerk of the Division of Administrative Hearings this XI day of June, 2001. COPIES FURNISHED: Charles Brown 7251 Minippi Drive Orlando, Florida 32818 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
Findings Of Fact Respondent employed at least 15 persons for each working day in each of at least 20 calendar weeks during the years in question. Petitioner, whose country of origin is Iran, holds a Bachelor of Science degree in civil engineering from the University of Central Florida. In early 1987. Petitioner submitted to Orange County an application for employment. The application was accidentally lost, resulting in the passage of several months during which Petitioner was not considered for employment. After expressing his frustration with the personnel department, Petitioner submitted another application in the fall of 1987. Relations between Petitioner and the personnel department were strained as Petitioner repeatedly followed up on his application and demanded an internal investigation into the matter. Although warning him that he was over-qualified for the position, the personnel department arranged for Petitioner to interview for an opening as an Engineering Technician III with the Orange County Highway Construction and Maintenance Department. On February 11, 1968, William Baxter, manager of the Orange County Highway Construction and Maintenance Department, interviewed Petitioner for the above-described position. During the course of the interview, Mr. Baxter decided that Petitioner was over-qualified for the Engineering Technician III position. However, aware that a person serving as an Engineer I had quit a few days earlier, Mr. Baxter summoned William E. Whyte, assistant manager of the same department, to join in the interview. At the conclusion of the interview, Mr. Baxter and Mr. Whyte told Petitioner that he would not have to submit to another interview for the Engineer I position. They did not, however, promise the position to Petitioner, although the interview had generally gone well for him. Mr. Baxter and Mr. Whyte mentioned that the position first had to be made available for then- existing qualified employees, but they were unaware of any who had applied. The job opening had been advertised publicly at about the same time that it had been posted internally. Pursuant to the requirements of the Orange County Commission Personnel Policy Manual, Section 2.11, the Highway Construction and Maintenance Department posted the Engineer I vacancy notice for existing employees on February 12, 1988. The notice stated that the position was delinquent in minorities: black. On February 17, 1989, Mr. Rolando L. Raymundo, a Filipino then employed by the department as an Engineer Technician IV, applied for the Engineer I position for which Petitioner was being considered. Mr. Raymundo also held a college degree in civil engineering and was more experienced than Petitioner in the work involved. Due to other responsibilities, neither Mr. Baxter or Mr. Whyte pursued the Engineer I opening for a couple of months. On April 27, 1988, Mr. Whyte interviewed Mr. Raymundo, whom he recommended on that date for promotion to Engineer I, effective May 15, 1988. In the meantime, no one with Orange County informed Petitioner of the status of his application or the fact that Mr. Raymundo eventually had been hired to fill the position. This treatment was not unique to Petitioner, however. Due to the number of applications received and personnel available to process applications, the personnel department does not routinely inform unsuccessful applicants that they have not been chosen for a particular position.
