Findings Of Fact The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S, William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election. Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees; however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD). Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews. The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash. Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid. The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00 p.m. They are paid for a full eight hour work day. Parks Department employees, also in the PWD, commence work at 7:00 a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash. Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city. Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred. On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties. Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed. Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed. A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them. When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed. The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office. Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office. Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours. Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked: "Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work? Yeah; true. Q. Is that true? A. uh-huh. Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union? A. Him and some other people too." Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236) The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time. In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed. Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction. Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
The Issue Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.
Findings Of Fact Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the Petitioner's weight (and size) would be considered a disability under the ADA provisions. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle. The Petitioner began his probationary status with the Respondent in January 2000. During the probationary period, the Petitioner received monthly job performance evaluations. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent. The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment. The Petitioner was fully able to perform the functions of his job. The Petitioner performed his job with the Respondent even when using a small vehicle. The Respondent never refused a request for an accommodation from the Petitioner. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 30th day of May, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carlos A. Mangual 1290 Northeast 135th Street North Miami, Florida 33161 Consumer Services Miami Dade County 140 West Flagler Street, Suite 901 Miami, Florida 33128 Eric A. Rodriquez, Esquire 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993 Ana M. Urrechaga, Esquire Urrechaga, P. A. 8603 South Dixie Highway, Suite 209 Miami, Florida 33143
The Issue The issue presented for decision herein is whether or not the Respondent failed to have in effect written procedures for the implementation of policies and procedures; failed to provide adequate training, staff, recreation areas and facilities as required pursuant to Sections 400.141 and 393.067(5), Florida Statutes, and Rule Sections 10D-38.08; 10D-38.19(2)(c) and (9), (10) and (12), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Petitioner, Department of Health and Rehabilitative Services, seeks to impose an administrative fine in the amount of $300 based on allegations set forth more particularly in its Administrative Complaint 1/ filed October 28, 1983, alleging, inter alia, that Respondent failed to have written procedures for the implementation of policies and procedures as enumerated in Rule 10D- 38.08, Florida Administrative Code; that Respondent filed to provide adequate inservice training or professional direct care and other personnel; failed to have recreation and facilities designed and constructed as required by Rules 10D-38.10 and failed to have age-appropriate recreation equipment and supplies to meet patients' direct interests and needs in sufficient quantities and varieties to carry out objectives of its program. Based thereon, it is alleged that Respondent violated minimal standards as required by Petitioner's rules and regulations under Chapters 393 and 400, Part I, Florida Statutes. Respondent, Woodhouse, Inc., has a license to operate Woodhouse, 1001 NE Third Avenue, Pompano Beach, Florida, an intermediate care facility for the mentally retarded. Woodhouse was newly established during approximately April of 1983. On May 17 through 18, 1993, Petitioner conducted a survey of the facility by personnel from its Miami Office of Licensure and Certification. Results of that survey revealed that Respondent did not have into effect written procedures for the implementation of its policies and procedures. These policies dealt with items such as health, hygiene, grooming, equippage and an absence of needed staff including a recreational therapist and a qualified mental retardation employee on its staff. On June 29, 1983, Petitioner conducted a re-survey by members of the initial team who surveyed Respondent's facility during May of 1983 and, at that time, most of the items cited as violations had been corrected. The areas needing improvement related to the specifics as to how the policies and procedures were to be implemented by Respondent. The other area cited as still being in noncompliance was the absence of a trained recreational therapist and a qualified mental retardation employee on Woodhouse's staff. Marcia Trivigno is the Executive Director in charge of the overall administration of Woodhouse. Ms. Trivigno is the person in charge of and who authored the Respondent's Procedures Manual and of making the ultimate decisions respecting the hiring of staff for Woodhouse. Ms. Trivigno compiled and authored the Respondent's manual by reviewing the Policies and Procedures Manual of two other area facilities and based on recommendations from Petitioner's staff. Following the Petitioner's initial survey during May of 1983, Ms. Trivigno made a good faith effort to correct all areas cited as deficiencies during the initial survey. Initially, Ms. Trivigno experienced difficulty securing a trained recreational therapist. She temporarily used a part-time recreational therapist who left the Respondent's staff to work full-time in another position. Ms. Trivigno was successful in hiring a recreational therapist on June 24, 1983, approximately five days prior to Petitioner's re-survey. Respondent's staff sought the advice and consent of Petitioner's survey team members and implemented, to the extent possible, the deficiencies cited as relates tot he Policies and Procedures Manual. (Testimony of Marcia Trivigno and Angela Catarino.) It is not unusual for a newly established intermediate care facility to be cited for multiple violations during an initial survey by Petitioner's staff. During the initial survey, members of Petitioner's staff advise a client as to problem areas and offer ways to correct or otherwise remedy problem areas. In those instances, the usual procedure is for a plan of correction to be implemented by members of the facility and the survey teams. (Testimony of Laverne Dixon, Petitioner's staff person in charge of the surveys conducted at Respondent's facility of 1983.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Administrative Complaint filed herein be DISMISSED. DONE AND RECOMMENDED this 30th day of May 1984 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984.
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.
The Issue The issue in the case is whether the Respondent’s suspension and eventual termination of the Petitioner from employment were in retaliation for complaints of sexual harassment made by the Petitioner against a co-worker.
Findings Of Fact The Petitioner began employment with the Respondent in October 1990 as an Automotive Service Worker in the maintenance department. At various times during his employment, there were between nine and eleven employees in the maintenance department. The Petitioner's responsibilities included mechanical work on the Respondent's police vehicles. At all times material to this case, the Petitioner's immediate supervisor was Chris Marinari. Ben Lacy, the Maintenance Division Director, supervised Mr. Marinari. At all times material to this case, Benjamin Lanahan was employed in the maintenance department and worked at the same facility as the Petitioner. Mr. Lanahan occasionally exhibited inappropriate behavior around the mechanic's shop, including exposing his sexual organs to co-workers and grabbing at their groins or buttocks. Mr. Lanahan exhibited such behavior in the presence of, and towards, the Petitioner. The Petitioner was offended by the behavior and on several occasions told Mr. Marinari of his objection to the behavior. Mr. Marinari apparently regarded the conduct as mutual "horseplay" and although he may have verbally instructed Mr. Lanahan to refrain from the behavior, he took no official action on Petitioner’s verbal complaints. The Petitioner received periodic evaluations throughout his employment. The Petitioner did not note his concern about Mr. Lanahan's behavior in the employee comment section of the evaluation form, but noted his apparent increasing satisfaction with the workplace. On April 15, 1992, the Petitioner was promoted to Auto Mechanic I. On December 8, 1993, the Petitioner was promoted to Auto Mechanic II. There is no evidence that the Petitioner filed any written complaints with his employer regarding Mr. Lanahan's behavior prior to his termination from employment. In May 1995, the Petitioner apparently became dissatisfied with Mr. Marinari’s response to his complaints about Mr. Lanahan’s behavior and took his complaint to Mr. Lacy. The Petitioner asserts that Mr. Lacy threatened to terminate his employment if he "made waves." Mr. Lacy denies that he threatened the Petitioner's employment. The Respondent's sexual harassment policy authorizes an employee to contact the Director of Human Resources if an employee believes that a supervisor has not adequately addressed a complaint. The Petitioner received a copy of the policy as set forth in the personnel rules. The Petitioner did not report the alleged threat by Mr. Lacy until 1996, when Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated for the reasons addressed herein. The greater weight of the evidence fails to establish that Mr. Lacy made the alleged threat to terminate the Petitioner's employment based on the complaint of harassment. Mr. Lacy investigated the Petitioner’s complaint and, determining it to be valid, issued a written disciplinary report against Mr. Lanahan in June 1995. Mr. Lacy and the Respondent’s Director of Human Resources recommended to the city manager that Mr. Lanahan’s employment should be terminated. The city manager did not accept the recommendation, and instead suspended Mr. Lanahan for two weeks without pay and required him to go to counseling. The Respondent also offered counseling to employees at the facility who had been subjected to Mr. Lanahan’s behavior. In August 1995, the Petitioner realized that, when attempting to cash a check, his driver's license had expired. He advised Mr. Marinari, who told him to take emergency vacation time to renew his license. The Petitioner renewed his license. Driving a city vehicle without a valid license is a "Group II" violation of the Respondent's personnel rules, and warrants a seven-day suspension without pay. The Petitioner received the suspension. He did not file a grievance at that time. The Petitioner eventually learned that some city government employees who worked in other departments and were found to be driving with invalid licenses apparently received lesser penalties for the infraction. The Petitioner then filed a grievance regarding his suspension, but the filing deadline had passed and it was dismissed. The Petitioner’s grievance did not raise the alleged threat by Mr. Lacy to terminate his employment for complaining about Mr. Lanahan. There is no evidence that the Petitioner's supervisors were aware of what other supervisors were doing at the time they suspended the Petitioner for driving without a valid driver's license. There is no evidence that the Petitioner’s suspension was related in any way to his complaint regarding Mr. Lanahan’s behavior. The Petitioner suggests that the Respondent, which maintained a database of relevant information in order to remind employees of license expiration dates, inaccurately informed him that his license was valid when it had expired. The evidence establishes that the Petitioner provided the inaccurate database information to the Respondent. There is no evidence that the Respondent knew or should have known that the Petitioner's license had expired. In September 1995, the Petitioner asked to be placed on "flextime" so that he could leave work early in the afternoon and pick up a child from school. Initially his request was denied because there were already two other employees working flextime, and the supervisor was concerned about the small shop not being fully staffed at normal hours. Within a few days, one of the other employees was returned to a regular work schedule and arrangements were made to allow the Petitioner to work a flexible schedule from 6:30 a.m. to 3:00 p.m. At the time the flextime request was approved, the Petitioner was advised that because he would start his workday an hour before the maintenance shop was otherwise staffed or supervised, it was necessary that he remain on task in order to complete work assignments. At some point around this time, the Petitioner found a piece of city equipment (an “A/C leak detector”) under the seat of his truck. He complained to Mr. Marinari, who questioned the Petitioner’s co-workers but was unable to determine how the equipment came to be in the Petitioner’s truck. There was no disciplinary consequence to the incident. During the time the Petitioner worked a flex schedule, the building maintenance supervisor also arrived for work at about 6:30 a.m. The building manager became aware that the Petitioner and the other co-worker on flextime would routinely leave the shop in a city vehicle shortly after arriving and “punching the clock” at 6:30 a.m. The building manager reported the practice to Mr. Marinari, who in turn told Mr. Lacy. On January 12, 1996, Mr. Marinari and Mr. Lacy arrived at the shop early enough to precede the Petitioner, and waited to see what would happen. The supervisors observed the Petitioner and the other co-worker arrive at about 6:30 a.m., clock in, almost immediately leave in a city vehicle, and then return with food at about 7:00 a.m. and eat breakfast. While the Petitioner and the co-worker went to get breakfast, the maintenance shop was unattended and unsecured. Prior to January 12, 1996, the supervisors were unaware that the flextime employees were taking a city vehicle to get breakfast while being "punched in" on the time clock. The Petitioner asserts that leaving work in a city vehicle for breakfast was a common practice. The evidence fails to support the assertion. The supervisors confronted the employees at the time the practice was discovered. Both employees were subsequently disciplined for the incident. The co-worker was suspended for a period of seven days without pay. Because the Petitioner had committed two "Group II" offenses within an eighteen-month period, Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated. The City Manager declined to follow the recommendation and instead suspended the Petitioner for a period of thirty days without pay. During the thirty-day suspension period, Mr. Marinari learned that the Petitioner had a statue in his backyard that was presumed to be city property. The source of Mr. Marinari's information is unclear. Mr. Marinari advised Mr. Lacy of the matter. Mr. Lacy investigated the report by driving by the Petitioner's house with the director of the city parks department, where they determined that the statue was similar to one kept at a city storage area. The matter was referred to the city police department. After investigation, a police investigator determined that the statue was city property. The investigator attempted to discuss the matter with the Petitioner, who suggested other city employees had placed it there at some earlier time. The Petitioner declined to identify the individuals he believed were responsible, and asserted that the whole incident was a conspiracy by people trying to "get him." The evidence fails to establish that other city employees placed the statue in the Petitioner's backyard. The statue was in the Petitioner’s possession for an undetermined period of time. There is no evidence to suggest that someone involved in a “conspiracy” to have the Petitioner’s employment terminated placed the statue in his yard. There is no evidence that the Petitioner reported to law enforcement officials the initial appearance of the statue in his yard. There is no evidence that the Petitioner attempted to identify or return the statue to the owner. The Petitioner asserts that the police investigator suggested that the Petitioner should resign to avoid prosecution for possession of stolen city property. The investigator denies the assertion. The greater weight of the evidence fails to support the assertion. Misuse of city property is a "Group III" offense, and pursuant to the personnel rules, is punishable by termination of employment. The supervisor recommended termination to the city manager. The Petitioner was suspended for five days pending an administrative hearing. Subsequent to the hearing, the city manager accepted the recommendation and terminated the Petitioner's employment effective February 6, 1996. There is no credible evidence that the termination of the Petitioner’s employment was a result of his complaints about Mr. Lanahan’s behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Human Relations Division, City of St. Petersburg, enter a final order dismissing the complaint of employment retaliation filed by Timothy Henault against the City of Pinellas Park. DONE AND ENTERED this 1st day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2002. COPIES FURNISHED: J. Robert McCormack, Esquire Persante & McCormack, P.A. 2555 Enterprise Road, Unit 15 Clearwater, Florida 33763 Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701
