Findings Of Fact At all times relevant hereto, Petitioner was employed as a Clerk Specialist in the Medical Records Department of Respondent's Mental Health Institute and held permanent status in the Florida career service system. On June 3, 1986, Petitioner received a telephone call from her mother relating the substance of a bizarre telephone call she had received the previous night from her son-in-law, Petitioner's estranged husband. This caused Petitioner to fear for the safety of her children and she left her job around 3:00 P.M., went to school and to a day nursery to pick up her children and took them to her mother's house where she stayed while away from work. Petitioner frequently left the office during working hours but made up the time so lost by working through her lunch hour or before or after her regular working hours. Sometimes she took annual leave for this time off. Petitioner and her supervisor expected Petitioner to return to work June 4, 1986. During the next few days Petitioner or her mother frequently called Petitioner's supervisor to report that Petitioner was still concerned about the safety of her children but would return to work. On June 9, Petitioner spoke to the office supervisor, Carol Foster, who had just returned from a week long HRS convention in Miami, and told Foster that she would not return to work until Wednesday, June 11. Foster asked if she could come in and work that night (Monday), to which Petitioner agreed. Petitioner later called and said she could not come in that night. On Tuesday, June 10, 1986, Petitioner's mother called in and advised Foster that Petitioner would not return to work until the following Monday, June 16, 1986. Foster replied that no leave was authorized and Petitioner was expected to report to work the following day, Wednesday, June 11, at 8:00 a.m. Later on this same day Foster repeated this message to Petitioner. On Wednesday, June 11, 1986, Petitioner called Foster and said she could not come in to work. Foster replied that no leave was authorized. On Thursday, June 12, 1986, Foster told Petitioner that unless she reported to work on Friday, June 13, 1986, she would have no choice but to consider Petitioner to have abandoned her job. On Friday, June 19, 1986, Petitioner did not report to work and made no effort to contact Foster. On the morning of June 13, Petitioner attended a job interview for another position on Respondent's campus. Upon learning of this, Foster then prepared and sent to Petitioner by certified mail a letter containing notification that she was deemed to have resigned her position by abandonment and notifying Petitioner of her right to petition for review. (Exhibit 2)
The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2005.
Findings Of Fact Officer Norman W. Stephens has been an employee of the Florida Marine Patrol, assigned to Area Eleven for approximately five years. On or about November 13, 1975, Officer Stephens was advised that he was being suspended from his employment for three days for allegedly falsifying employment records. (Agency Exhibit 4). The suspension was implemented by letter dated October 21, 1975, and Officer Stephens was suspended from employment on November 1, 2, and 3, 1975. (Agency Exhibit 3). By letter dated October 28, 1975, Officer Stephens appealed his suspension to the Florida Career Service Commission. By notice dated April 13, 1976 a hearing was scheduled before the undersigned. The hearing was conducted on May 14, 1976. On September 13 and 14, 1975 Officer Stephens was assigned to the night shift. The night shift ran from 8:00 P.M. until 5:00 A.M. The night shift on September 13 ran from 8:00 P.M., September 13, until 5:00 A.M. on September 14. The night shift on September 14 ran from 8:00 P.M. on September 14 until 5:00 A.M. on September 15. There had been a number of boat thefts in Area Eleven, and Officer Stephens was assigned to investigate the thefts by patroling the waterways in a Marine Patrol boat. Officer Stephens had been explicitly instructed to put in at least six hours per shift on the water due to the boat thefts. The weather was not such on either day as to prevent Officer Stephens from placing his boat in the water. At midnight on the September 13th shift, Officer Stephens' boat was parked at the Department of Pollution Control where the boats are housed. The boat was on its trailer and was not in the water. Officer Stephens' boat and car were at his home at 3:30 A.M. on September 14, during the September 13th shift, and were still there at 4:30 A.M. At midnight on the September 14th shift Officer Stephens' boat was parked at the Department of Pollution Control on its trailer. At approximately 2:15 A.M. Officer Stephens picked up his boat and met with a Gulf Breeze Police Department car. Officer Stephens and the Gulf Breeze policeman met another Gulf Breeze police unit at another boat ramp. Officer Stephens went from there to his home, and arrived at 3:17 A.M. At 4:12 A.M. through 4:45 A.M. his boat and trailer were still at his home. Officer Stephens did not put in a full work shift, and did not perform the duties expected of him on either September 13 or September 14. On or about September 18, 1975, Officer Stephens turned in a law enforcement time record to the administrative offices of the Florida Marine Patrol, Area Eleven. The time record reflects the hours worked by Officer Stephens from August 22, 1975 through September 18, 1975. The sheet reflects that Officer Stephens worked a full work shift on September 13, and September 14, 1975. The sheet was filled out by Officer Stephens. He signed it, certifying that the times and hours recorded were accurate. There was a sharp conflict in the testimony as to the nature of instructions given by the managerial and supervisory personnel of Area Eleven to the officers respecting how law enforcement time records should be kept. All managerial, supervisory, and administrative personnel who testified stated that the officers were to reflect the actual hours they worked on the records. All officers who testified stated that they had been instructed to reflect the hours of their shift on the record rather than the hours actually worked. Had instructions given by management officials clearly required that actual hours worked rather than hours of the shift be set out, it is incredible that four officers would be willing to testify under oath that they filled out the records so as to reflect the hours of the shift. Management had within its power the ability to clarify the situation with a written memorandum. The fact that at least several officers were reflecting their shift on the records placed management on notice that hours actually worked were not being reflected. It is therefore concluded from the testimony that officers were either expected to reflect the hours of their shift on the time records, or that a pattern developed under which officers had reason to believe that reflecting the hours of the shift would be acceptable to management. If an officer missed his meal hour due to the press of his duties, he could make up that time by going home from his shift an hour early. Under the pattern that developed, he would nonetheless reflect the hours of his shift, including a lunch hour, on the time records. The testimony will support a finding that it was acceptable for an officer to reflect his shift on the time records rather than actual hours worked so long as the officer performed his assigned duties. The testimony will not support a finding that an officer who did not perform the duties assigned to him, including his duty to put in a full work day, could nonetheless reflect the hours of his shift on his time record as if he had actually performed his duties. Officer Stephens filled out his time record by reflecting that he worked a full work shift on September 13 and 14, 1975. This was a falsification of facts. Officer Stephens did not work a full work shift, did not perform the duties that were assigned to him and expected of him, and shirked his duties on those dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the three-day suspension without pay of Officer Norman W. Stephens from his employment with the Florida Marine Patrol, Division of Law Enforcement of the Department of Natural Resources be affirmed. DONE and ENTERED this 20th day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1976. COPIES FURNISHED: Mr. Conley M. Kennison State Personnel Director Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Benjamin R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida Jack Pierce, Esquire Crown Building 202 Blount Street Tallahassee, Florida
The Issue Whether Respondent, a high school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2014),1/ for an inappropriate relationship and inappropriate communications with a student; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 946095, covering social science. The certificate is valid through June 30, 2019. In the 2014/2015 school year, the Respondent was teaching social science at Gulf Coast High School in Collier County. In October 2014, the Respondent began communicating with his student, H.D., by text messages. There were numerous texts sent on a regular basis over the course of about two months. Most of these messages did not relate to classroom matters, which violated school district policy. Many were highly personal and clearly inappropriate. Thirty-three times, the Respondent referred to his student as “baby.” Nine times, he wrote, “miss u.” Nine times, he said she was “beautiful.” Five times, he said she was “cute.” In one message, the Respondent asked the student to meet him at the mall during winter break for him to buy her a Christmas gift. He also texted her on Christmas Eve and on Christmas morning. In one text, he asked to take her to dinner. In one message, the Respondent asked the student if she minded if he rubbed her leg. In another, he apologized for hugging her and kissing her on the nose. When these text communications came to the attention of the school’s administration, an investigation was initiated. On January 15, 2015, the Respondent was informed of the investigation and was given an opportunity to explain. The Respondent declined. He was then escorted off campus. The school district referred the matter to law enforcement, which also investigated. When interviewed by law enforcement, the Respondent exercised his right to remain silent. No criminal charges were brought against the Respondent because H.D. and her mother did not want to press charges and because there was no evidence of sexual misconduct by the Respondent. After the law enforcement matter was closed, the school district again confronted the Respondent about the charges, and he again declined to respond. Instead, he resigned his employment on February 9, 2015. The school superintendent accepted the resignation but specified that the Respondent resigned “Not in Good Standing.” As a result, the Respondent is not eligible for rehire in any capacity by the school district. His misconduct and ineligibility for rehire clearly reduces his effectiveness as an employee of the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty on Counts 1, 2, and 6, and revoking his Educator Certificate. If the revocation is not permanent, it should be for at least five years, after which he would be able to re-apply for certification and try to demonstrate good moral character. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of January, 2018.
Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on April 8, 1997.
Findings Of Fact 1. At all times material hereto, Petitioner was employed by Respondent, Clerk of Court, Duval County. She was a Clerical Support Aide II until her promotion to Court Records Aide in 1996. Her duties in both positions involved administrative support clerical work, which included cashier functions. 2. The quality of Petitioner's work is not at issue, as Petitioner received satisfactory and above satisfactory evaluations while employed by Respondent. 3. In 1996, Petitioner was under the supervision of Janice Sain in the Traffic Department. Ms. Sain held the position of Assistant to the Clerk. Her responsibilities included overseeing the traffic violations bureau, purchasing department, and the tax deeds department. At the time, Petitioner was assigned to Courtroom 51 which handles first appearances for traffic-related cases, accidents, and misdemeanors. Break Room Incident 4. Employees such as Petitioner would report to work by faxing a daily sign-in sheet each morning showing that the employee was on duty. It was in this manner that Ms. Sain would keep track of whether employees had reported to work from the various branch locations around the city. If an employee was unable to communicate by facsimile, the employee would call in to report that they were at work. 5. On or about November 22, 1996, Petitioner's immediate supervisor, Wanda Myers,’ advised Petitioner that she had not received Petitioner's daily sign-in time sheet. She repeatedly questioned Petitioner regarding the time sheet. Petitioner became nervous and returned to her desk in the cashiering area. Petitioner began shaking and gasping for breath. Petitioner was instructed by Ms. Myers to go into the employees' break room.’ 6. Petitioner believes that a sign which read, "Out of Order" was placed on the outside door of the break room while she was in there. However, there was no evidence presented at hearing to support that belief. The witnesses who were at work that day did not recall seeing a sign on the door. 7. Petitioner filled out a leave request form for sick leave from 3:00 p.m. until 4:30 p.m. Ms. Myers denied that request writing in the comments section, "Denied-told her Janice Sain on way to office to speak with her and told her she could not leave." 8. Ms. Sain was called by Wanda Myers who requested that Sain come to the Traffic Department ("Traffic") as soon as possible to counsel Petitioner. Ms. Sain went to Traffic and spoke to Petitioner. Petitioner filled out another leave slip that afternoon for sick leave from 4:00 p.m. until 4:30 p.m. which was approved by Janice Sain. Ms. Sain wrote in the comment section, "Jarrilyn used her break and went home upset at 3:40." 9. Petitioner called her fiancé, Edward Davis, who met her at her job. Petitioner drove herself home and Mr. Davis followed her. 10. Petitioner later submitted an amended leave request form for the same date and time period but requesting that the leave be designated as worker's compensation. This leave was disapproved as Petitioner's worker's compensation claim was denied and she, therefore, was not entitled to worker's compensation leave. Respondent does not have the authority to approve worker's compensation leave without notification from the worker's compensation office that the claim had been approved. 11. Petitioner sought medical attention on November 25, 1996, three days after the break room incident. The doctor who saw Petitioner wrote a note excusing her from one day's work: "Jarrelyn [sic] is to be excused from work for a period of 1 day and may resume work as of Wed Nov 27, 1996." Petitioner returned to the doctor again on November 27, and December 4, 1996. No documentation was presented as to Petitioner's ability or inability to work as a result of those doctors' appointments. 12. There was no evidence presented that Petitioner was denied sick leave when requested, with the exception of waiting 40 minutes on November 22, 1996. Transfer to University Boulevard Branch Office 13. Petitioner's promotion to Court Records Aide was effective December 9, 1996. On approximately the same date, another employee, Mary Carter, had an accident and broke her back. Ms. Carter had previously been assigned to the Beaches Branch satellite office. Ms. Carter's medical absence led toa rotation of the cashier staff to provide adequate staffing in the various branch offices. Petitioner was transferred to the University Boulevard branch office as a result of this rotation of staff following Ms. Carter's accident and subsequent medical absence. 14. It is common for cashiers employed by Respondent to have varying work locations over a period of time. Assignments for cashiers were subject to change. Respondent tries to provide three to seven days notice to employees on permanent location changes. 15. Respondent's branch offices are physically located within the county Tax Collector's branch offices. Branch offices are also known as satellite offices. The University Center branch office has only one employee (cashier) of Respondent. 16. Petitioner did not provide Respondent with any documentation suggesting that she had medical restrictions relating to her employment duties prior to her transfer to the University Boulevard branch. Lunch Hour at Branch Offices 17. The branch or satellite offices were operated in 1996 from 8:00 a.m. to 5:00 p.m. Employees of Respondent assigned to these branch offices, at that time, did not have a designated lunch period. The times that employees were able to take breaks were determined by the public. That is, sometimes lines of people waiting for assistance would be long. At other times which were less busy, employees took their breaks. Employees at branch offices frequently worked through lunch (as lunchtime was a typical time when the public would come in) and the employees would be paid overtime.* Employees would be given signs to place in their cashier windows for temporary breaks. 18. If an employee had an appointment or needed a designated time period away from the satellite office, Respondent requested that the employee provide advance notice in an effort to facilitate securing a staffing relief. Lorraine Thomas, who is currently a Court Records Aide Senior, would provide lunch relief on occasion to the satellite offices. Ms. Thomas would also provide relief when a clerk was out sick, if the employee's children were sick, or if an employee had doctor's appointments or other personal business. In the case of an emergency, cashiers at the branch office would need to call Traffic for relief. Ms. Sain would often transport employees in an effort to ensure coverage at the branch offices. Despite these efforts, there were times that a branch office would be closed due to being understaffed. 19. At the time of Petitioner's transfer to the University Boulevard office, none of the medical documentation provided by Petitioner to Respondent indicated that Petitioner had medical restrictions regarding her employment. 20. After being advised of the transfer to University Boulevard, Petitioner put in a transfer request dated December 11, 1996. The transfer request was submitted to Gwendolyn Loadholtz, Director of Human Resources. The transfer request states her reason for a transfer was to learn something new. Petitioner also put a check mark next to the word "other" but did not add any further explanation in the space provided. Petitioner did not state any medical reason for the transfer request. 21. Petitioner's doctor signed an Excused Absence from Work form dated December 12, 1996, stating that Petitioner should be excused from work from December 16, 1996, through December 20, 1996. 22. Petitioner's doctor completed a Medically Excused Absence form which stated that Petitioner was under the doctor's care for anxiety and depression, and "it is recommended that she be allowed a daily lunch break." The date of this form is not entirely clear but appears to be January 2, 1997. According to Petitioner, her doctor's office faxed this form to Respondent. Respondent, however, has no record of receiving it. Ms. Loadholtz, Director of Human Resources, testified that she did not receive it and that it was not in Petitioner's personnel file. Ms. Wanda Myers’ last day of employment was January 3, 1997, and there is nothing in the record to indicate whether or not Myers received the doctor's note. In any event, Petitioner wrote a hand-written letter dated January 3, 1997, to "Traffic Management" complaining that she was not getting a lunch hour. 23. Petitioner was treated in the same manner as other employees at the branch offices of Respondent regarding lunch breaks. Petitioner was not the only branch employee without a designated lunch break. 24. On or about January 6, 1997, Petitioner filed a grievance, through her union steward, regarding the lunch break issue. The grievance was resolved in Petitioner's favor. Thereafter, branch employees were afforded a lunch break if they wanted one. 25. Petitioner worked at the University Boulevard branch from December 16, 1996, until January 21, 1997, when her transfer request was granted and she was moved to Misdemeanor "A". Transfer to Misdemeanor "A" 26. Petitioner's doctor wrote a letter dated January 20, 1997, which stated in pertinent part: This is to state that the above named patient has been under my care. She has been diagnosed to have an anxiety disorder that at the present time is exacerbated by the stimulation of having to deal with the public in her place of work. It would be to this individual's advantage, as far as recovering from her present condition, to be placed temporarily in a position in which she would not have to be dealing directly with the public. 27. Petitioner's request for transfer was granted after Respondent received this January 20, 1997, letter from Petitioner's doctor. She was transferred to the Misdemeanor "A" Department effective January 21, 1997. That Department consisted of cashiering, as well as processing violation of probation cases, worthless checks, and processing the Salvation Army payments. Maxine Russell, Senior court Records Clerk, was her supervisor at Misdemeanor "A". Ms. Russell had no knowledge of 10 Petitioner's having a serious medical condition and did not regard her as having a disability. When Ms. Russell became aware of the January 20, 1997, doctor's letter regarding Petitioner, she assigned Petitioner to work at a desk processing payments with minimal contact with the public. 28. Ms. Russell held an initial conference with Petitioner on January 30, 1997, to go over her duties. In a written chronology that Russell maintained during that time period,’ a notation was made on January 21, 1997, that Petitioner volunteered her assistance in helping on the counter and cashiering when necessary. Petitioner's testimony denied that she volunteered but acknowledged that she did on occasion work at the counter when requested. 29. Petitioner received a mid-probation evaluation on or about March 5, 1997, and received a satisfactory rating in every category on the evaluation sheet. 30. Since the January 20, 1997, doctor's letter referenced the desirability for Petitioner to be placed in a non-public job setting, Russell requested an updated doctor's statement regarding her need for continued accommodation. This request was made on or around March 18, 1997. Russell needed the statement to keep Petitioner in a non-public setting since most of the employees' duties involved contact with the public. Russell did not receive an updated doctor's statement regarding Petitioner's need for further accommodation. 11 31. Petitioner complained about her new assignment and felt it was not adequately addressing her medical needs. On or about April 7, 1997, Russell moved Petitioner to yet another desk. Her new duties included processing probation violations which did not involve working with the public, and answering phones during breaks and lunch times. Periodically, Petitioner would have to deal with probation officers, but not members of the public. 32. Petitioner had a doctor's appointment on April 2, 1997. She returned with a Medically Excused Absence form which stated that Petitioner was under the doctor's care for counseling "from 4/2/97 to se" + with nothing written in the blank. As April 2, 1997, was the only date referenced on this form, the form was simply an excuse from work for that date only. Petitioner's leave record shows she took one and one-half hours of sick leave that day. The form was silent as to any continuing work conditions that were necessary or even recommended for Petitioner. 33. Petitioner received a satisfactory performance evaluation on August 5, 1997. 34. Petitioner's leave record reveals that she frequently was granted sick leave and was also granted leave without pay when her leave was exhausted. She was not disciplined for excessive leave nor is there any suggestion in the record that Respondent accused Petitioner of abusing her leave. 12 35. Other than the January 20, 1997, letter stating that it would be to Petitioner's individual advantage to be placed temporarily in a position in which she would not have to be dealing with the public, there is nothing in the record to support anything more than a temporary placement of Petitioner in a position not dealing with the public.
Conclusions For Petitioner: Jarrilyn D. Black, pro se 8030 Old Kings Road, South Number 49 Jacksonville, Florida 32217 For Respondent: LaShanda R. Dawkins, Esquire 117 West Duval Street Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED : That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 13" aay of July, 2001, in Tallahassee, Leon County, Florida. Ait Bidsex \, dis oe f pos Adhinistrat 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 /3%> day of July, 2001. 17
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, Petitioner, Ausbon Brown, Jr. (Petitioner), who is an African-American male born on April 25, 1943, contends that Respondent, Department of Health (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends instead that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost 21 months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to Petitioner's job applications received in evidence, as supplemented by testimony at hearing, from June 1965 until April 1994 Petitioner worked for the U. S. Department of Commerce, National Marine Fisheries Service, in various positions, including "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries technician/biologist," and "Equal Employment Opportunity Counselor." Petitioner then retired from federal service. From July 28, 1995, until July 6, 1998, he was employed as a child support enforcement case analyst with the Florida Department of Revenue. Currently, he is employed by Daytona Beach Community College in an undisclosed capacity. In 1996, Petitioner filed a number of job applications with the former Department of Health and Rehabilitative Services (HRS). Shortly after the applications were filed, HRS was abolished and many of its functions were transferred by the Legislature to at least three other agencies, including the Department, the Department of Children and Family Services (DCFS), and the Agency for Health Care Administration. Four positions that followed the Department are in issue here, and they include positions 66224, 29618, 67370, and 80690. Position 29618 has a long and somewhat confusing history and was originally created for the Volusia County Health Department (Health Department) in January 1994. It was first filled in March 1994, but was vacated in June 1996. The position was then transferred to HRS and reclassified as an Operations and Management Consultant II. Even though it was advertised as a "pending" position in November 1996, Petitioner responded to that advertisement and filed a job application with HRS. Since it was a pending position, it was never filled and was "restructured" a month later to a Personnel Services Specialist. After the HRS reorganization became effective in late 1996 or early 1997, position 29618 was transferred to the Department where it was reclassified Personnel Officer I. The Department advertised the position in March or April 1997, and it was filled in April 1997 through a voluntary demotion taken by a DCFS employee whose prior position as a Senior Personnel Manager was lost through the reorganization. That individual was given priority in filling the position since the Legislature mandated that existing employees who lost their jobs through reorganization be given priority in filling other state jobs. Petitioner did not file an application for the position after it was advertised by the Department, and thus no consideration need be given to allegations pertaining to this job. Further, there is no evidence that the position was reclassified or transferred between the agencies on three occasions for the purpose of allowing it to be filled by a DCFS employee rather than by Petitioner. Position 67370 was classified as a data base analyst coordinator and was transferred from DCFS to the Health Department on an undisclosed date. When the job was advertised by the Health Department only five persons applied for the position, including Petitioner and Shirley Wilson (Wilson), the successful applicant whose race and exact age is unknown. Based on her dates of education, however, she is likely to be younger than Petitioner. In addition to the minimum qualifications, the Health Department desired a person with experience in Microsoft applications used by the Department, system security, supervision of employees in the automation field, and the data base itself. Because Wilson had experience in all of the above areas, was currently employed as a data base analyst/coordinator (system administrator) for the DCFS, and was "recognized statewide for her excellence within the CHD system," she received the highest score and was chosen for the position. Conversely, Petitioner could not match Wilson's direct experience in these fields and therefore did not have the qualifications possessed by the successful applicant. The evidence shows that the most qualified person was chosen. Contrary to a suggestion by Petitioner, the competitively-advertised position was not filled through the promotion of an existing employee, which would be contrary to personnel rules, but rather it was filled through the reassignment of another employee (Wilson). Position 80690, an Inspector Specialist, was located within the Department's Office of Inspector General. Over 130 persons filed applications, and score sheets were prepared for each candidate based on the applicant's education, experience in certain prescribed areas, written and verbal communication skills, and computer skills. Petitioner received an overall score of 136, while the successful candidate, Robert D. Cotton (Cotton), a white male three years younger than Petitioner, received 326 points. Although Petitioner received one of the highest point totals for education (84), he received only 21 points for his experience since his investigative experience was in the scientific area rather than in the areas unique to the Office of Inspector General. Thus, Petitioner's contention in his post- hearing filing that he should have been assigned 300 points for professional investigative experience (rather than 21) has not been accepted. In contrast, Cotton had extensive supervisory experience and prior work experience, including four years as the director of the office which processes and investigates licensee complaints for the Department of Business and Professional Regulation. Thus, Cotton was the most qualified person for the job. Petitioner also applied for position 66224, an Environmental Specialist with the Health Department. Forty-three persons filed applications, but only the nine who received more than 40 points were chosen for an interview. Petitioner was not in this group since he received only 26 points, for a ranking of twentieth on the overall list. A three-person evaluation committee initially reviewed the applications and assigned points on the basis of interview selection criteria. The successful applicant, Lawrence Pagel (Pagel), a white male whose exact age is unknown, received 51 points. Based on his dates of education, however, it is likely that Pagel is younger than Petitioner. Before accepting the job, Pagel had served as an Environmental Health Specialist for the Columbia County Health Department, and he had both a bachelor and master's degree in public health. The greater weight of evidence supports a finding that the most qualified person was selected for the job. While the Petition for Relief alleges that the Department "classified positions" and varied "conditions of employment" in an effort not to hire Petitioner, there was no credible evidence to support this claim, or that the Department's actions were a pretext for discrimination. Indeed, there is no evidence from which to even draw an inference that the employment decisions were grounded on discriminatory animus in any respect, or that the Department acted with discriminatory intent when it hired the successful applicants and rejected Petitioner. During cross-examination of Respondent's witnesses and his own rebuttal testimony, Petitioner suggested that employees within an agency have an inherent advantage over outsiders, such as he, since they can more easily obtain the specific job experience required for vacant positions. Even if this is true, however, it does not constitute a discriminatory act on the part of the Department within the meaning of Chapter 760, Florida Statutes. Petitioner also contended that his applications were not properly scored and that he should have been entitled to more points based on his work experience; the more persuasive evidence belies this contention.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 10th day of March, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Steven W. Foxwell, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
