Findings Of Fact The Appellant Betty Saunders has been employed by the Department of Health and Rehabilitative Services and attained permanent status within the Career Service Commission in two classifications, Computer Systems Analyst I and Computer Systems Analyst II. By memorandum dated June 10, 1976 which was distributed to Appellant and other employees and by letter dated July 1, 1976, Appellant Saunders was advised of her status as an affected employee in the reorganization of Appellee department and that her position was being moved from Jacksonville to Tallahassee. She was told that she could move with the position and if not she would be retained on the payroll for a period of ninety (90) days or until she obtained a new position, whichever first occurred. Employees of the Appellee made extraordinary efforts to place affected employees in other positions if said employees did not choose to move from Jacksonville to Tallahassee. Appellee made many attempts to place the Appellant in positions, including positions of promotion. However, Appellant declined to accept. A written offer was made Appellant Saunders by letter from H.F. Goodwin, Director, Office of Management Systems. Said offer was a ten (10) percent increase in salary and a promotion to a position as Systems Project Analyst, Class Code 0180, Paygrade 22, located in Tallahassee, Florida. The promotion was declined. By letter dated September 24, 1976, Mrs. Saunders was informed by the Department of Health and Rehabilitative Services that her position was abolished and that she was laid off from employment by the department effective September 30, 1976, and that she would receive two (2) weeks pay in lieu of the fourteen (14) calendar day notices provided by rule. This letter also notified the Secretary of the Department of Administration that the Secretary of the Department of Health and Rehabilitative Services had designated Duval County as a competitive area. On October 11, 1976, the Secretary of the Department of Health and Rehabilitative Services received a letter dated October 4, 1976, from the Secretary of the Department of Administration expanding the competitive area. The agency accepted and acted upon the areas recommended by the Department of Administration, but there was no further written communication with the regard to the lay-off or the designation of the competitive area. Further communication was unnecessary. The Appellant Saunders was not notified that she had a right to request a demotion or any time frame for which she could seek a demotion. There is no evidence to show that Appellant Saunders sought a demotion although she is qualified to perform the job of a computer operator which is a demotion from the position she held as a computer systems analyst. No such notice was necessary or required. The Proposed Orders of the parties submitted to the Hearing Officer have been examined and considered in the preparation of this order.
Recommendation Sustain the action of the agency in laying off the Appellant Betty Saunders. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. COPIES FURNISHED: Ben Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Douglas Whitney, Esquire Room 406, Building 1 1323 Winewood Boulevard Tallahassee, Florida 32301 Mrs. Dorothy Roberts Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY REMAND ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF BETTY SAUNDERS against LAYOFF DOCKET NO. 76-303 DOAH CASE NO. 77-274 by the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES /
The Issue The issue in this case is whether Respondent discriminated against Petitioner by terminating her employment in violation of Section 760.10, Florida Statutes,1 the Florida Civil Rights Act.
Findings Of Fact Petitioner, Theresa Dawson, is a 47-year-old, African- American woman. At all times pertinent to this matter, Petitioner was employed by Respondent as a personal banker at Rosemont. As a personal banker, Petitioner was responsible for, inter alia, opening new accounts for customers of Bank of America (the "Bank"). Petitioner had worked for the Bank (including its predecessor entities) for almost 25 years, beginning her employment in 1981 as a bank teller. She served at a number of Bank branches until being transferred to Rosemont in 1998. Petitioner was a valued employee of the Bank and was considered to be one of the best workers at Rosemont. She was nominated for and received bonuses almost every quarter. She received annual salary increases well in excess of the average for her peers. During a certain period when Bank headquarters directed managers to limit all raises to two percent, Petitioner was given a six-percent raise due to her substantial performance record. Petitioner had never been disciplined or reprimanded by the Bank concerning her employment activities until the actions leading to this administrative proceeding. Personal bankers were paid a base salary and could earn additional compensation based upon performance. To obtain bonuses or extra compensation, the employee must first meet all of their objectives (as predetermined by the Bank). Once those goals were met, more income in the form of incentives could be earned. Incentives were based on productivity: A personal banker would receive credit for opening new accounts in excess of his or her stated goals. In addition, the employee could accumulate points which could be used to purchase consumer goods such as televisions, stereos and other household goods. Each Bank employee was assigned a NBK number, which is essentially an internal employee number. Each employee was also asked to select a private, confidential password for use in logging on to the Bank computer system. Bank policy forbade employees from sharing their password with anyone, even with Bank computer technology personnel. Passwords had to be changed on a regular basis (usually every 90 days) as an added measure of security. All employees were charged with understanding and following the policy concerning passwords. In order for a personal banker (or other authorized employee) to open a new account for a customer, the employee must log onto the Bank computer using their NBK and password. The account would then be electronically opened using the Bank computer system. Once the electronic process was complete, a signature card would be printed for the customer's signature. Sections of the signature card would be manually filled in by the Bank employee who opened the account; that person would theoretically be the same employee who had electronically opened the account. On Saturday, April 30, 2005, Marcia Clark, the bank manager for Rosemont, was at work. It was a busy day at the banking center. Dorothy Faulk, a long-time employee of the Bank, was also working on that day. Faulk was a customer service specialist who had authority, among other things, to open new accounts for customers. On that day Faulk was filling the role of personal banker (in name only; she was not included in the personal banker's incentive program while filling the role in that limited basis). Towards the end of the workday (1:00 p.m. because it was Saturday), Clark found a new account signature card on the office copy machine. The signature card indicated that Petitioner had opened the account, but Clark knew Petitioner had not been working on that day. Since it was almost time to close for the day, Clark opted to deal with the apparent discrepancy during the next business week. On the following Tuesday, May 3, 2005, Clark asked Petitioner about the signature card she had found the previous Saturday. Petitioner indicated that Faulk must have logged on to the Bank computer system using Petitioner's password. In response to further inquiry by Clark, Petitioner admitted giving her password to Faulk for that purpose. The next day, Clark asked Faulk about the signature card and whether she had logged on using Petitioner's password. Faulk said that she had indeed used the password, but that it had been a one-time occurrence. Clark then discussed the situation with her supervisor, Debbie Nelson, the Bank's consumer market manager. Nelson was concerned about what Clark told her, and she told Clark to contact the Bank's senior investigator, Roy Gonzaque, so that he could look into the matter. Meanwhile, Clark pulled internal bank documents known as PMRRs (the Performance Measurement Rewards and Recognition tool) in an effort to determine whether there were other instances where Petitioner's password had been used when she was not actually at work.3 Within a week, Gonzaque came to Rosemont and interviewed a number of employees, including Petitioner and Faulk. He also examined the documents which had been reviewed by Clark and which showed the following: December 18, 2004--four new accounts were opened under Petitioner's password; March 5, 2005--three new accounts were opened under Petitioner's password; March 19, 2005--three new accounts were opened under Petitioner's password; and April 30, 2005--three new accounts were opened under Petitioner's password. Each of those days was a Saturday on which Petitioner was not at work. A signature card was found for each of those days as well; each of the cards had Faulk's handwriting on it.4 Gonzaque questioned Petitioner and obtained a voluntary written statement in which Petitioner admitted giving her password to Faulk, but said she believed prior managers had known about and condoned the practice. Petitioner then admitted her wrong-doing and apologized for engaging in that activity. Faulk was also questioned and wrote a statement saying that she had been opening accounts using personal bankers' passwords for about one and a half years.5 Faulk said she opened accounts under the personal banker number in order to make sure customers would not have to wait to long. That statement is not credible because Faulk had the authority to open new accounts under her own number. Further, the statement contradicts what Faulk said to Clark on the day she was first confronted. Faulk also wrote that she didn't know Petitioner would benefit financially as a result of the action. Again, this statement is not credible because Faulk had been a personal banker and knew how the incentive bonuses were calculated. Faulk stated that Clark not only knew about this practice, but that Clark inquired why Faulk was not opening accounts for other personal bankers as well in order to be "fair."6 Gonzaque, Nelson, and Clark met to discuss the situation further. They called the Personnel Office at the Bank's headquarters during their meeting. The Personnel Office recommended that upon those facts, both Petitioner's and Faulk's employment should be terminated. Despite the fact both employees had exemplary work histories, a consensus was reached by the three management personnel to terminate employment. It was a difficult decision to make and, actually, was detrimental to Rosemont because Faulk and Petitioner were well known by bank customers. Clark was responsible for informing Petitioner about the termination of employment. When Clark did so, Petitioner did not raise any objection. Without saying a word Petitioner turned over her keys and other Bank property in her possession and then walked out of the bank. She showed no emotion and made no comments to Clark or anyone else. Petitioner had earned performance and incentive bonuses on a regular basis. Her earned bonus for the quarter preceding her termination from employment was to be in excess of $8,300. That was significantly larger than average bonuses earned by other employees.7 The Bank opted not to pay that bonus to Petitioner on the basis that she had gained it fraudulently, i.e., by allowing someone else (Faulk) to open accounts for her. As Gonzaque described it, Petitioner had "lied, cheated and manipulated the system" to get the bonus. Each Bank employee must read and understand the "Code of Ethics and General Policy on Insider Trading" (the "Code"). The Code is available both on-line and in hard copy format. Petitioner acknowledged in writing annually that she had read, understood, and agreed to comply with the Code. The Code requires employees to abide by the Associate Handbook, to abide by all Bank policies, and to seek counsel concerning any questions about ethical issues that might arise. The Bank's Associate Handbook includes information concerning passwords. It states unequivocally that "Associates must not share their passwords, including e-mail passwords, with any other person-- not even technical support personnel." Further, passwords were not to be stored under keyboards or other unsecured places. Two former Rosemont employees remembered isolated incidences of password sharing. Sherri Nichols remembers an assistant manager asking each teller for their passwords on one occasion so that he could take some sort of test for them. The assistant manager (Jeremy Barkley) does not remember doing so, and his testimony is credible. Carmita Kelly remembers Barkley using her terminal--where she had logged on--for a short period of time while she stood nearby. Even if those instances did occur, they did not involve use of a personal banker's password to open new accounts. There was no other competent evidence that employees had been sharing passwords in the manner alleged by Petitioner. Petitioner has not found suitable employment since the date of her termination from Rosemont. She has applied to a number of places without success. In some of her employment applications, she misrepresented her departure from Rosemont, indicating that she had not been terminated from employment. Her explanation for that false statement was that "I was trying to get employment." Petitioner seemed devoid of remorse or guilt and appeared to believe that the end justified the means, thus diminishing her credibility at final hearing. Unlike Petitioner's failure, Faulk was able to obtain employment with another lending institution only a couple of weeks after being let go by Rosemont. She now works with yet another bank. After Petitioner's and Faulk's employment was terminated, Rosemont hired new employees. It appears the two positions held by Petitioner and Faulk (personal banker and customer service specialist, respectively) were not filled by persons with the same level of experience as the terminated employees. Rather, persons were hired who could be trained to fill those positions upon further training. A number of persons were hired, but it is unclear from the evidence at final hearing whether any one person was hired to directly fill Petitioner's position. Two white males were hired, as was a Hispanic woman, but no witness could provide a clear history of when each was hired and for what specific job. At no time during her employment with the Bank or Rosemont did Petitioner hear anyone make a discriminatory remark to her based on her race or age. Employees described the Rosemont employees as a "team" who all worked together for the common good. Both the Bank and Rosemont had a history of diversity in hiring practices. One of the three persons making the decision to terminate the employment of Petitioner was African-American. The evidence at final hearing was conclusive that race was not a factor in the decision to terminate Petitioner (and Dorothy Faulk).8 It is clear that Rosemont did not hire or fire employees on the basis of race and that every employee was given the opportunity for advancement regardless of race. In the case of Petitioner, she had been regularly promoted, honored, and financially rewarded for her work. She suffered no adverse actions on the basis that she was African-American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. It is FURTHER RECOMMENDED that each party's request for an assessment of attorney's fees and costs in this matter is DENIED. Although Petitioner acknowledged that no one at the Bank had ever made any remarks concerning her race, she nonetheless alleged and attempted to prove that the issue resulting in her termination from employment was motivated by race. The facts did not support her allegation, but it was not a frivolous charge in and of itself. DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of October, 2007.
The Issue The issues presented are whether the unauthorized use of a school computer to view Yahoo personal websites violates Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a) and and (4)(c), and, if so, what penalty should be imposed against the teaching certificate of Respondent.1
Findings Of Fact Respondent holds Florida Educator's Certificate Number 719005 (teaching certificate). Respondent is certified to teach English, grades six through 12. The Seminole County School Board (the School Board) has employed Respondent as a teacher for approximately 13 years. The School Board employed Respondent as a teacher on the date of the hearing. For the 2003-2004 school year, Respondent taught honors English and drama at Oviedo High School (Oviedo). Oviedo provided a computer in Respondent's classroom. Oviedo limited acceptable use of the computer to educational and academic business use (the acceptable use policy). The acceptable use policy prohibited personal use of the computer such as viewing the news, weather, or sports. From the start of the school year through February 24, 2004, Respondent violated the acceptable use policy. Respondent used the computer for various personal purposes for as much as 20 to 30 minutes or as little as five minutes; as frequently as every day and as infrequently as one day a week. Respondent viewed various internet sites, including sites for Celtic music, cross-stitching, and Yahoo personal websites. The Yahoo personal websites included pictures of nude adult women, sometimes in sexually explicit scenes. The Complaint alleges that Respondent's use of the school computer to view Yahoo personal websites violates several statutes and rules. Counts 1 through 3 in the Complaint concern alleged violations of statutes. Counts 4 through 6 concern alleged violations of rules. Count 1 alleges that viewing Yahoo personal websites is an act that constitutes gross immorality or involves moral turpitude in violation of Subsection 1012.795(1)(c). Count 2 alleges that the unauthorized use of the computer seriously reduced Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Count 3 alleges that the use of the school computer to view Yahoo personal websites violates the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules in violation of Subsection 1012.795(1)(i). Counts 4-6 identify the specific rules of ethics that were allegedly violated when Respondent used the school computer to view Yahoo personal websites. Counts 4-6 allege that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a), (3)(e), and (4)(c), respectively, by: failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health; intentionally exposing a student to unnecessary embarrassment and disparagement; and using institutional privileges for personal gain or advantage. At the hearing, Petitioner dismissed Count 5 in the Complaint. That Count alleged that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Florida Administrative Code Rule 6B-1.006(3)(e). The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health. There is no evidence that a student at Oviedo viewed any inappropriate material on the computer. Respondent used the computer during his planning periods after he had graded papers, completed lesson plans, and concluded any other academic business. Students were not present during planning periods. When Respondent used the computer for inappropriate purposes, the classroom door was closed and locked. No students were present, and the computer faced a wall away from the classroom entrance. The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(4)(c) by using the school computer for personal gain or advantage. There is no evidence that Respondent did anything other view images on a computer. There is no evidence that Respondent copied the material, distributed it, pandered the material, or took any other action for personal profit or gain. The absence of a finding that Respondent violated any of the rules of ethics cited in the Complaint precludes a finding that Respondent violated Subsection 1012.795(1)(i) pertaining to ethical violations. Therefore, clear and convincing evidence does not support the charges in Count 3 of the Complaint. Nor is Count 2 supported by clear and convincing evidence. The act of viewing Yahoo personal websites on the school computer did not seriously reduce Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Respondent continued as an effective employee of the School Board. On February 25, 2007, the School Board removed Petitioner from the classroom for the duration of the school year without pay. However, the School Board continued to employ Respondent in non-teaching positions until October 2005 when Respondent returned to the classroom at Greenwood Lakes Middle School (Greenwood) and then at Millennium Middle School (Millennium).2 The principal at Greenwood and Millennium assessed Respondent as proficient and an asset to the schools.3 Respondent earned satisfactory evaluations.4 Clear and convincing evidence does not support the allegations in Count 1 of the Complaint, which alleges that Respondent is guilty of moral turpitude or gross immorality in violation of Subsection 1012.795(1)(c). Petitioner defines the term "moral turpitude" by rule. Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude, in relevant part, to be a "crime . . . evidenced by an act of baseness, vileness, or depravity. . . ." The use of the school computer to view Yahoo personal websites was not a crime. After an extensive criminal investigation, no criminal charges were filed against Respondent.5 The use of a school computer to view Yahoo personal websites was not an act of baseness, vileness, or depravity. There is no evidence that the Yahoo personal websites are pornographic sites. Oviedo blocks access to pornographic sites, and Oviedo does not block access to Yahoo personal websites. There is no evidence that any of the women depicted as nude or in sexually explicit scenes were underage. Yahoo prohibits persons under 18 from using the personal websites. Petitioner does not define the term "gross immorality" by rule, but Petitioner does define the term "immorality" by rule. Florida Administrative Code Rule 6B-4.009(2) defines immorality, in relevant part, to be conduct that is sufficiently notorious to bring Respondent or his profession into public disgrace and impair Respondent's service in the community. The act of viewing Yahoo personal websites did not satisfy the definitional elements of immorality. The act of viewing Yahoo personal websites did not impair Respondent's service in the community. After the events at issue in this proceeding, Respondent continued to teach at Valencia Community College (Valencia) and Seminole Community College (Seminole). At Valencia, Respondent teaches a dual enrollment class in Western Civilization. A dual enrollment class is one in which high school seniors receive both high school and college credit for the course. At Seminole, Respondent has taught courses in Fundamentals of Writing 1 and 2, both of which are college preparatory courses; Western Civilization; U.S. History; and Medieval Humanities. The act of viewing Yahoo personal websites on the school computer was not sufficiently notorious that it brought either Respondent or his profession into public disgrace or disrespect. Any notoriety that did occur resulted from the actions of the School Board and Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2007.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact. The Petitioner, Business Telephone Systems of Tallahassee, Inc., was incorporated as a Florida corporation in October of 1985, and was certified as a minority business enterprise ("MBE") by the Department of General Services through May 21, 1988. Pursuant to its bylaws, the business of the corporation is managed by, and its corporate powers are exercised by, a board of directors. Ms. Nancy L. Nuce is the solemember of the Board of Directors of the Petitioner corporation and all corporate officers serve at her pleasure. Ms. Nancy L. Nuce, a female, owns 97.25% of the stock of the Petitioner corporation. She serves as Vice President, Secretary, and Treasurer of the Petitioner corporation. Her husband, Mr. William Nuce, has always been the President of the Petitioner corporation. According to the bylaws, the President is the chief executive officer of the corporation. Nevertheless, the President serves at the pleasure of the Board of Directors, and Ms. Nancy Nuce, as sole member of that board, has the discretion to remove the President at any time. Since January of 1988, both Mr. William Nuce and Ms. Nancy Nuce have been working full-time for the Petitioner corporation. Ms. Nancy L. Nuce has the sole authority to hire and fire employees of the Petitioner corporation, and she has exercised that authority. Ms. Nancy L. Nuce is well informed as to the financial structure of the Petitioner corporation. She is the person who is most familiar with the financial affairs of the corporation, and she appears to be well informed regarding the corporation's financial affairs. She controls the business checking account of the Petitioner corporation and signs the vast majority of the checks. Mr. William Nuce is authorized to sign on the checking account, but rarely does so. Mr. William Nuce usually signs checks only when deliveries are made to the office at times when Ms. Nancy L. Nuce is not available. Mr. William Nuce does not get involved in the financial affairs of the Petitioner corporation. He performs the technical aspects of the business, including such matters as installations, moves, changes, additions, and maintenance of telephone systems. Although he uses technicians to do most of the physical labor, he checks to make sure that the work is done properly and he does the site surveys prior to commencement of the work. As described in detail below, Ms. Nancy L. Nuce has a good working knowledge of the corporation's business operations and she handles all aspects of the corporation's business operations other than actual installation. Ms. Nancy Nuce develops and plans the necessary telephone systems with potential customers, determines the customers' needs, designs the systems, orders the necessary equipment for the telephone systems, and trains the customers on the systems once they are installed. She seeks and negotiates contracts, prepares and submits bid proposals, determines the amount of profit to include in the bid, negotiates and obtains the necessary bonding to submit bids, and determines which projects to bid on. She purchases all necessary insurance for the corporation. She orders and purchases all necessary inventory and insures that all supplies necessary for the day-to-day operation of the business are on hand. She negotiated the lease of the corporation's business premises and recently negotiated and purchased a truck for the corporation.
Recommendation Based on all of the foregoing, it is recommended that the Department of General Services issue a final order in this case recertifying the Petitioner corporation as a minority business enterprise. DONE and ENTERED this 21st day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3885 The following are my specific rulings on the proposed findings of fact submitted by all parties. Findings proposed by Petitioner: All findings of fact submitted by the Petitioner have been accepted, except as specifically noted below. Paragraph 2: The first sentence is rejected a unnecessary historical and procedural details. Findings proposed by Respondent: Paragraph 1: First sentence accepted. The remainder of this paragraph is rejected as constituting unnecessary background details. Paragraphs 2 and 3: Rejected as constituting subordinate and unnecessary details. Paragraph 4: It is accepted that Ms. Nuce owns 97.25% of the stock of the Petitioner corporation. The rest of this paragraph is rejected as subordinate and unnecessary details. Paragraphs 5 and 6: Rejected as subordinate and unnecessary details. Paragraph 7: The first and fourth sentences of this paragraph are accepted. The remainder of the paragraph is rejected as subordinate and unnecessary details and as unnecessary commentary upon the quality of the evidence. Paragraphs 8 and 9: Accepted in substance with some unnecessary details omitted. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: For the most part, rejected as subordinate and unnecessary details. Last sentence of this paragraph has been accepted. Paragraph 12: Rejected as subordinate and unnecessary details and as constituting an inference contrary to the greater weight of the evidence. Paragraph 13: Last sentence accepted in substance. The remainder of this paragraph is rejected as subordinate and unnecessary details. Paragraph 14: Rejected because the fact that discussions take place is irrelevant and joint decisions is contrary to the greater weight of the evidence. Paragraph 15: Rejected as subordinate and unnecessary details. Third sentence also rejected as not fully supported by persuasive competent substantial evidence. Paragraph 16: Accepted in substance, with many unnecessary details omitted. Paragraphs 17, 18, and 19: Rejected as subordinate and unnecessary details. Paragraph 20: Accepted in substance with unnecessary details omitted. Paragraph 21: First sentence reflected as constituting a commentary on the quality of the evidence father than a proposed finding of fact. Second sentence rejected as unnecessary details. Paragraphs 22, 23, 24, 25, 26, and 27: Rejected as subordinate and unnecessary details, some of which are not fully supported by the evidence. COPIES FURNISHED: W. Crit Smith, Esquire SMITH & THOMPSON, P.A. 1530 Metropolitan Boulevard Tallahassee, Florida 32308 Sandra D. Allen, Esquire Office of General Counsel Department of General Services 200 East Gaines Street Room 452, Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 200 East Gaines Street Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland, Esquire General Counsel Department of General Services 200 East Gaines Street Room 452, Larson Building Tallahassee, Florida 32399-0955
The Issue (1) Whether or not the Department of Highway Safety and Motor Vehicles has subject matter jurisdiction in spite of the 60-day time requirement contained in Section 320.644, Florida Statutes, relating to the filing of a verified complaint and the facts pertaining thereto, and (2) whether the application of Respondents to become dealer/operator of Sugarland disqualified and meets the written, reasonable and uniformly applied standards of Chevrolet for executive management of a dealership.
Findings Of Fact Sugarland Motors, Inc. (Sugarland) was formed on October 26, 1987, in Florida, by Robert W. Boughton. Sugarland was formed to purchase the assets of Nicky Hegley Chevrolet in Clewiston, Florida, pursuant to a stock purchase agreement. Sugarland submitted an application to appoint Colleen Orrico as dealer/operator, replacing Arthur M. Johnson (Johnson) on January 8, 1990. Immediately prior to its purchase by Sugarland, the Nicky Hegley Chevrolet dealership was in poor condition and the business was generally in a state of disrepair. Boughton became involved as a financial investor in Sugarland, becoming owner of 15% of the stock and submitted an application to Chevrolet for approval as a financial investor in Sugarland which was approved. Colleen Orrico first became involved in Sugarland in 1987 when she became a financial investor owning 70% of the stock. Her application for approval as a financial investor in Sugarland was approved by Chevrolet. Johnson first became involved with Sugarland in 1987 when he became the dealer/operator owning 15% of the stock. He completed an application for dealer/operator status which was approved by Chevrolet. Johnson did not pay for his 15% share of Sugarland stock because he did not have the necessary cash. The application of Sugarland to acquire Nicky Hegley Chevrolet was approved by Chevrolet on January 14, 1988, and indicated the approval of Colleen Orrico, Robert Boughton and Ed Stinn, as financial investors and Art Johnson as the dealer/operator. Of the investors in Sugarland, Colleen Orrico's financial statement was the strongest. Sugarland is an authorized Chevrolet dealer in Clewiston, Florida, in addition to being authorized for Oldsmobile, Pontiac and GMC. Art Johnson resigned as dealer/operator of Sugarland on November 30, 1989, and his stock was redeemed by Colleen Orrico. Johnson served as the dealer/operator from January 1988 through approximately September 1989, pursuant to a Dealer Sales and Service Agreement (Agreement between GM and Sugarland). Pursuant to the agreement, Johnson was responsible for exercising full managerial authority on a day-to-day basis over the conduct of Sugarland's entire operations. The dealer/operator is the person upon whose qualification GM relies in entering into a dealer agreement and whose personal services the owner agrees to provide to GM. In September 1989, Johnson resigned as dealer/operator and discontinued all involvement in Sugarland's operations. Respondent 3/ never notified GM of this change in Sugarland's management structure. GM independently learned of the change by discovering that Johnson left the dealership and was no longer providing day-to-day management for Sugarland. The Chevrolet Motor Division, Tampa Branch Office (Branch) immediately sought a written explanation of this situation from Sugarland's principal owner, Colleen Orrico. Since Johnson's departure, Sugarland has continuously been without an approved executive management. On January 8, 1990, GM received from Boughton an application purportedly signed by Orrico seeking to name her as the dealer/operator of Sugarland. Although Orrico purportedly signed the application for General Motors' sales and service agreement and related materials, Boughton, Orrico's longtime lawyer, de facto business manager and confidant, filled out the application himself. Orrico consistently relied on Boughton to complete her applications to GM, including applications for either financial investments or control of at least two of the dealerships. Although Orrico was the dealer/operator candidate, all correspondence to GM on behalf of Sugarland was authored by Boughton. Kurt L. Ritter (Ritter), branch manager of Chevrolet Motor Division in Tampa, immediately notified Sugarland that the materials submitted were unacceptable because they were incomplete. Ritter indicated GM would consider a new proposal and again supplied a complete proposal package to Respondent. Boughton on behalf of Sugarland or Orrico submitted a new second proposal on January 18, 1990, as the original proposal was incomplete. GM, through its staff, investigated the second proposal and advised Sugarland that it was also incomplete based on GM's requirements. During the second review, GM observed discrepancies and inaccuracies in the proposal materials. Specifically, Orrico represented that she owned 85% of Ed Stinn's Chevrolet, Inc. (Stinn), a dealership in the Chevrolet-Pittsburgh Branch, wherein she had previously represented owning 49% of Stinn. Further, the application failed to disclose any litigation whatsoever involving Orrico or the company she was involved with despite GM's awareness of at least one lawsuit naming both Orrico and Boughton, alleging fraudulent stock in property transfers from Stinn to Orrico. Based on these deficiencies and inaccuracies, GM again requested a completed proposal and an explanation of these issues, with GM reiterating its willingness to respond to a new and complete proposal within 60 days of its receipt. Both Orrico and Boughton were familiar with the proposal process, GM applications and related materials. Orrico, through Boughton, had previously submitted at least three such proposal packets to GM concerning ownership/management changes at Stinn. Boughton also was an attorney with an expertise and experience in representing auto dealers in their day-to-day business dealings, including those with a manufacturer. Boughton acted as a business advisor to Orrico and her husband during their attempts to acquire additional ownership and management interest at Stinn. GM's proposed packet is composed of several forms seeking basic business, personal and financial information. Each form contains instructions and uniform requirements that each applicant for a dealer/operator position to submit an identical and complete application. Respondent's made two other submissions, in addition to the submissions on January 5 and January 18, on March 6 and April 24, however, they too were incomplete for reasons stated hereafter. None of the submissions clearly identified the person(s) who would be responsible for the day-to-day management of Sugarland. As example, the first application named Orrico, David Mullins and Boughton all as persons that would operate the dealership. No business experience was provided, however for either Mullins or Boughton. The second application indicated Orrico would run the dealership but was accompanied by a letter naming Donald Schwedo to replace Mullins as general manager. Orrico's listed business experience failed to include at least 13 companies she was employed by or connected with over the past 15 years. In the agreement between Sugarland and GM, Respondents agreed that when seeking to change the dealer/operator ownership, all information customarily requested by GM would be timely provided. Despite this agreement, Respondent never identified who the proposed management at Sugarland would be and a listing of their complete business experience. Based on the incompleteness of the series of documents GM had received, on February 12, 1990, GM advised Orrico that it was prepared to reject her as dealer/operator and file a verified complaint pursuant to Section 320.644, Florida Statutes. However, to avoid litigation, GM offered to consider a new, complete proposal packet if, in return, Orrico and Sugarland would (a) withdraw all prior proposals and (b) agree the sixty (60) day notice provided under Section 320.644, Florida Statutes would commence only upon submission of a complete, new proposal. On March 1, 1990, at Respondent's request, a meeting was held in West Palm Beach, Florida, involving Ritter, and a member of his staff from GM, Orrico, Boughton, Schwedo and Genaro Orrico, Respondent's husband. At the meeting, Ritter re-emphasized the need for full disclosure of (a) Boughton's and Orrico's business experience; (b) their involvement in other companies; and (c) any litigation involving Orrico, Boughton or those companies. Ritter then reaffirmed GM's intent at that time to file a verified complaint. Respondents, however, agreed to withdraw any then pending applications and agreed to resubmit a new and complete proposal under a new 60-day time clock. On March 6, 1990, Sugarland and Orrico, through Boughton, confirmed Sugarland's agreement to resubmit a new package under a new 60-day clock. Specifically, Respondents March 5, 1990 letter clearly provides that "Ms. Orrico and I understand that the approval process will begin anew with respect to all applications." GM relied on that letter and Respondents' representation at the March 1, 1990 meeting and did not file a verified complaint at that time. Consistent with their agreement, Sugarland also submitted a new application to increase Boughton's financial interest in Sugarland on March 6, 1990. On March 26, 1990, GM sent Orrico a letter detailing the deficiencies and discrepancies that needed to be addressed in the new proposal. Ritter also enclosed another proposal package for completion by Respondents. On April 24, 1990, GM received another application from Boughton alone and a description of his role in the pending bankruptcy litigation. However, missing was Orrico's role or an explanation of her involvement in that litigation, nor was any new application from Orrico enclosed. Boughton's package did not identify the intended management at Sugarland nor did Respondents ever resubmit a proposal package. Based on the continuing lack of a complete response from Respondents, on May 7, 1990, GM filed its verified complaint objecting to the proposed change in the executive management at Sugarland to Orrico advising that she was not of good moral character and failed to meet GM's written reasonably and uniformly applied standards and qualifications for dealer/operator, including completion of required proposal materials. While investigating Sugarland's executive management status, GM learned that Orrico's husband, Genaro, was in fact making the policy and management decisions for Sugarland while none of Respondents' submissions disclosed Genaro Orrico's management involvement with Sugarland or his business experience or affiliations. The retail automobile business is a complex business consisting of several profit centers under one roof including new cars, new trucks, used vehicles, parts and service, extended warranties, finance and insurance centers. GM uniformly requires its dealer/operators to be a competent business person, an effective manager and an experience merchandiser of automotive products and service. This requirement is reflected in each dealer sales and service agreement in the additional provision section as well as the dealer organization manual and the dealer operator application which ask for an explanation of how the applicant's experience will apply to management of a dealership. These documents and standards are used to evaluate dealer/operator applications for all Chevrolet dealerships throughout Florida and the United States. GM requires its dealer/operator to be active in the day-to-day operation of the dealership, that the dealer/operator affirmatively state in each case that he/she will maintain his/her principal residence near the dealership and actively participate in the daily management of the dealership. GM also has written requirements regarding submission of information regarding changes in dealer/operator and misrepresentations. The requirement regarding misrepresentations contained in each dealer/operator application states: "(4) Any material misrepresentation, whether intentional or unintentional, in the information submitted ... in connection with this application or in the questionnaire shall be grounds upon which the division may either: a) Elect to no longer consider my application, or (b) immediately terminate any "letter of intent", or (c) immediately terminate any dealer agreement executed by the division with me or the dealer company designated by me." Orrico read and understood the requirement at the time she submitted her applications to GM. She also understood that by signing the application, she acknowledged and agreed to the conditions contained therein and was required to truthfully and completely answer each inquiry. Each application also requires a list and explanation of all "present and previous business experience: (Account for all periods during at least the past 15 years)." Dealer/operator candidates are uniformly required to supply such information. On her application, Orrico listed only four companies in accounting for her business experience: American Southeastern Warranty Association, London American Insurance Agency, Griffin Management Company and Ed Stinn Chevrolet, Inc. Orrico listed her work experience as president of both Southeastern and London American which she classifies as still operating, manager at Griffin Management Company and owner/investor at Stinn. Orrico failed to include Griffin Systems, Inc., where she was an officer and a director from 1984 until 1988, and sole owner until 1988; Great Plains Capital Corporation where she was sole owner and received a salary; Great Plains Capital Insurance Company where she is sole owner (Great Plains Insurance Company is 100% owned by Great Plains Capital Corporation); Great Plains Insurance of the Bahamas, Ltd., where she is sole owner (Great Plains of the Bahamas, Ltd., is 100% owned by Great Plains Capital Corporation); C. Orrico, Inc., of which she is a director; G & C Property, Inc., of which she is a director; United States Acceptance Corporation, of which she is the registered agent, president, treasurer and director; Courtesy-Chrysler Plymouth, Inc., of which she is the registered agent and president; Master Leasing Systems, Inc., where she is the registered agent and director; Sugarland Leasing, Inc., where she is a director; Oracle Management Corporation, where is secretary and a director as well as sole owner; Seaside Realty of the Palm Beaches, Inc., where she is a registered agent and sole owner; and Munchies International Corporation, where she is the registered agent and owner. Orrico's pattern of selective disclosure of business experience is one wherein she failed to disclose those companies that she was involved with that had a history of consumer fraud or licensing litigation. As example, Ed Stinn Chevrolet, where Orrico was past owner/investor, is listed while Griffin Systems, Inc. in which she was an owner, officer and director was not listed. Griffin Systems, Inc. has been involved in a variety of consumer fraud litigation and investigations nationwide. At hearing, Orrico testified to new, previously undisclosed business experiences as a trustee in a commercial bankruptcy matter. Orrico was not involved in the daily operations and management of Ed Stinn Chevrolet and her claim that she meets GM requirement because of her ownership interest in Stinn Chevrolet is not helpful in that Stinn was not operated in compliance with the dealer sales and service agreement, did not meet GM's minimum sales and service standards and the management was so poor that the dealership failed and is no longer operational having ceased all sales in January, 1990. Similarly, Orrico's claims to meet GM requirements due to her ownership interest in Sugarland is also not helpful and that she was never involved in Sugarland's operations at a managerial level by her own admission. Here too, like Stinn, Sugarland was not operated successfully or in compliance with the dealer agreement as Sugarland routinely failed to notify GM of the resignation and replacement of its management, the dealership lost a significant amount of money since its inception and may fairly be characterized as unsuccessful. Orrico identified no other experience with a business involved in retailing new automobiles. Orrico's claimed business experience as a "manager" with Griffin Management Company as a part-time clerk/secretary was by her own words, "menial". As with all dealer/operator applications, Orrico's application asked the following question: "Are you, or any business in which you were or are a principal owner, officer or director, a party to any presently pending civil or criminal action or administrative proceeding?" Orrico answered "No". The application also asked: "Have you, or any business which you were either a principal owner, officer or director been held liable in or settled out of court in a civil action (including administrative proceedings seeking injunctive or other restrictive order)?" Again, Orrico answered "No". As of the date Orrico submitted her last application, thirteen (13) such matters existed. Many of the matters involved consumer fraud litigation. Some of the matters resulted in enforcement orders against companies Ms. Orrico was involved with as either an officer or director. As of the hearing date, at least six additional such matters had been filed. None of these matters were ever disclosed to GM by Respondent in any of the various applications or submissions. Moreover, none of the involved businesses were listed by Orrico in her application. Boughton filled out the application information on Orrico's behalf. Boughton knew Orrico was an owner, director and officer of Griffin Management Company, Inc., within the last five years. Moreover, Boughton was aware of litigation involving these businesses including Griffin Systems, Inc. and could have easily compiled a comprehensive list of Griffin Systems, Inc.'s litigation for inclusion in Orrico's application. He elected not to do so. Orrico's business experience also fails to meet GM's standards in that the business affiliations Orrico that failed to disclose did not reflect competent management or honest business practices. Many of Orrico's thirteen undisclosed business affiliations a) have been or are involved in state licensing enforcement actions; b) have consented to cease and desist orders for questionable business practices; c) are being pursued by state agencies for consumer or other business fraud; and d) are being investigated by the United States Postal Inspector (to the extent of an armed seizure of records at one company) and the Federal Trade Commission under the Consumer Protection Statutes. GM also has written standards contained in the dealer organization and planning manual instructing all GM personnel concerning dealer/operator candidates to require: a) a work history and background that indicates good potential to be a successful operator of a dealership; b) a reputation for integrity; c) a track record of success; and d) experience in the retail/automobile business. The litany of fraud actions and Orrico's prior business failures in the automobile industry clearly failed to meet the standards that GM uniformly require of its dealer/operators. GM's standards are reasonable and are supported by the standards of other manufacturers. Indeed, Respondent's own witness, Glenn Robert Franz of Mitsubishi Motors related that Mitsubishi would likely deny an application of a dealer/operator under circumstances as presented here. Mitsubishi likewise, would have probably not approved a candidate who was involved in similar pending consumer fraud and licensing litigation. More to the point, Orrico's questionable business affiliations have already directly impacted Sugarland's business operations and reputation. Orrico admits that American Southeastern Warranty Association sold extended auto warranties through Sugarland. The Florida Department of Insurance has alleged that the management of American Southeastern Warranty Association (including Orrico) is not competent and trustworthy to manage its affairs within compliance of the law. Each of Orrico's various applications contained numerous affirmative misrepresentations and omissions of material fact, evidencing a pattern of dishonesty and gross negligence that raises questions concerning her integrity and business experience. Orrico was, or certainly should have been aware of the numerous affirmative misrepresentations and omissions of material fact that were filed in her various dealer/operator proposals to GM. Orrico admitted to having read and reviewed her applications before signing them and admitted the falsity of the business experience disclosures and omissions. Despite this fact, her failure to correct these misrepresentations, despite repeated opportunities to do so, reflects an intent to deceive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Highway Safety and Motor Vehicles enter a Final Order denying Respondent Sugarland Motors, Inc. and Colleen Orrico's proposal to change the executive management at Sugarland. DONE and ENTERED this 8th day of April, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of April, 1991.
The Issue May Petitioner, Polk County School Board (Board), terminate the employment of Respondent, Stephen Brown, as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Dennis F. Dunn, dated January 24, 2013, asserting that Mr. Brown engaged in serious misconduct, providing just cause to terminate his employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Board employed Mr. Brown as a classroom teacher through a Professional Services Contract. By letter dated January 24, 2013, Assistant Superintendent Dennis Dunn advised Mr. Brown that Polk County School Superintendent John Stewart intended to recommend his termination to the Board for improper use of the "Board issued laptop computer due to pornography and sexually inappropriate images" found on the computer. Mr. Brown has been a teacher for 18 years. Ten of those years, including 2012, Mr. Brown taught at the Board's Inwood Elementary School (Inwood). This was not the first time the school took action against Mr. Brown. On March 31, 2011, Inwood Principal Amy Heiser-Meyers gave Mr. Brown a letter confirming a verbal warning that she gave him during a conference that day. The letter stated: When redirecting or addressing a student's behavior, refrain from getting into their face and also refrain from making inappropriate comments and actions that are disparaging and harmful to the student's mental health. As the authority figure in the classroom, it is not appropriate to use your body and physical proximity to intimidate the student. Your actions towards the student violated the Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida: State Board of Education Rule 6B-1.006 FAC (a)(e)[sic]. The letter also advised that the conference was a first step of the progressive discipline outlined in the Teacher Collective Bargaining Agreement and cautioned that further discipline, up to and including termination, might be imposed for additional "unacceptable behaviors." On April 23, 2012, Principal Heiser-Meyers delivered Mr. Brown a letter confirming a discussion during a conference that day. This letter was "not to be construed as disciplinary in nature, but rather as a letter of concern." It addressed the importance of meeting deadlines and processing paperwork, specifically not having student award certificates ready in time for a scheduled lunch awards presentation. In a June 6, 2012, letter, Ms. Heiser-Meyers confirmed a verbal warning that Mr. Brown violated "The Principles of Professional Conduct of the Education Profession in Florida [sic] (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. AND (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement." Principal Heiser-Meyers' letter stated that she conducted the conference "pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement" and that it was the first step of progressive discipline outlined in that section. It also cautioned that continued "unacceptable behaviors" could result in disciplinary action up to and including termination. On June 4, 2012, and on August 31, 2012, Mr. Brown signed the Board's Employee Equipment Use Contract for a laptop computer assigned to him. The contract included these conditions: I AGREE TO RETURN THE ABOVE EQUIPMENT IN THE SAME CONDITION IT WAS IN UPON CHECKOUT AND AGREE TO PAY FOR REPLACEMENT DUE TO LOSS OR DAMAGE BEYOND REPAIR THAT MAY OCCUR WHILE IT IS ASSIGNED TO ME. REPLACEMENT COST IS CONSIDERED THE COST TO PURCHASE NEW EQUIPMENT. I AGREE TO USE THE EQUIPMENT FOR SCHOOL BOARD PURPOSES ONLY, AND UNDERSTAND THAT I WILL BE RESPONSIBLE FOR INJURY OR DAMAGES CAUSED BY ANY INAPPROPRIATE OR UNAUTHORIZED USE OF THIS EQUIPMENT. I WILL NOT BE HELD RESPONSIBLE FOR ANY REPAIRS RESULTING FROM NORMAL AND ORDINARY USE OF SUCH EQUIPMENT. Mr. Brown took his school-issued laptop computer home around November 30, 2012. He used it to search for information about cash advance loans he could obtain to repair his automobile. While Mr. Brown was searching for loan information, a red screen displaying the title "FBI Federal Bureau of Investigation" appeared. The screen advised that the computer had been locked and stated that Mr. Brown was subject to several federal criminal charges, including possession of child pornography and gambling, unless he paid $200.00 within 48 hours to a designated account. Mr. Brown shut down his computer. He tried restarting and shutting down the computer a few times to see if the message would go away and the computer would operate. Mr. Brown then called the FBI office to report the incident. The individual to whom Mr. Brown spoke told Mr. Brown that he was describing a frequently reported virus and that he would need professional help removing it. Mr. Brown took the laptop to the office supply store, Staples, the following day to obtain its virus removal service. He paid for the service and purchased an extended warranty for $199.00. Mr. Brown took the computer to Staples, instead of to the school's information technology office, because he thought that, since the virus appeared while he was using the computer for personal purposes, the terms of equipment-use contract made him responsible for repairs. Mr. Brown did not report the problem to the school's technology office. Staples was unable to service the computer for three days. When Staples did service the computer, it removed the virus. But the Staples technicians could not repair damage to the hard drive and replaced it. The technicians also re- configured the laptop's original hard drive as an external hard drive with Mr. Brown's documents and other files on it. While Mr. Brown's laptop awaited service at Staples, he tried to use the school computer of his colleague, Penny Humphrey. Ms. Humphrey reported his efforts to the school's computer network manager, Marilyn Layton. Ms. Layton reported the issue to the principal, who advised school board investigator Barry Marbutt that he was concerned Mr. Brown might have inappropriate material on his laptop. Mr. Marbutt interviewed Mr. Brown, who told him of the FBI virus and the repairs by Staples. Mr. Marbutt took Mr. Brown's laptop. Mr. Marbutt later learned from a Staples representative about the old hard drive being reconfigured as an external drive. He then obtained the external drive from Mr. Brown. Sid Lee, senior manager of the Board's electronic equipment repair and support department, examined Mr. Brown's laptop and software to determine if the computer held any inappropriate material. Mr. Lee did not conduct any tests or analyses to determine if Mr. Brown's report of a virus was accurate. The computer and associated external hard drive contained over 200 pornographic images, admitted as Exhibit 6. They were located at the address “D/Documents and Settings\stephen.brown\Local Settings/Temporary Internet Files\content.IE5," which is also referred to as the browser cache. The parties stipulate that the images are pornographic. Many of the images depict sexual violence. Many depict scenes with several participants, bound females, or hooded or masked participants. None of the images, or the identifiable sources for them, match data sets of known or suspected child pornography, including the DHS-ICE Child Exploitation Hash set and data sets obtained from the FBI, state, and local law enforcement agencies. All of the images are generated by small files. The size of the files is consistent with the images being either "popup" or "thumbnail" images. A "pop-up" is a pop-up window on a computer screen.1/ A "thumbnail" is "a miniature computer graphic sometimes hyperlinked to a full-size version" of an image.2/ The files occur in a few clusters in the Internet browser cache of the laptop. On July 19, 2012, approximately 113 of the pornographic images were among 171 images downloaded into the laptop's browser cache between 1:54:06 p.m. and 1:57:11 p.m., a period of three minutes and five seconds. This means that they downloaded extremely quickly. For instance, Exhibit 6 shows that at 1:56:23 p.m., four images downloaded. At 1:56:24 p.m., six images downloaded. The average download rate for the time period was 1.08 seconds per image. This rate is not consistent with a person manually browsing the Internet. Seven of the images are plainly advertisements for pornographic websites or DVDs. Twenty have watermarks on them depicting several different website addresses. During the July 19, 2012, time period, when the files were downloaded, there were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites. During the July 19, 2012, time period one or more pop-ups attempted unsuccessfully to download malicious software. The analysis of the computer, however, showed frequent log-ins to Facebook at other times and days. The typical pattern of computer users is to perform more than one function or go to more than one website when logging on to the internet. On August 20, 2013, a single pornographic video was downloaded. There were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites at the same time. On November 29, 2012, 225 image files were downloaded between 3:59:44 p.m. and 4:12:26 p.m., a period of 12 minutes and 42 seconds. This indicates that the images downloaded quickly, at an average rate of one image per 3.4 seconds. This rate is not consistent with a person manually browsing the internet. At least 101 of the images were pornographic. As with the July 19, 2012, time period, there were no contemporaneous log-ins to other websites at the same time. The images included 12 advertisements for penis enlargement techniques or substances and 14 advertisements for services facilitating sexual encounters with local females. There were also images with website address watermarks; but the watermarks are not legible. Staples technicians determined the laptop was infected with the malware virus, “Reveton," also known as the "FBI virus." The virus has the ability to start a computer, access the Internet, visit websites, and download images without the computer owner's knowledge or participation. Using these abilities, the virus's masters can and do remotely operate enterprises that include "click jacking" and "ransoms." In "click jacking," the virus causes the host computer to activate, log on to the Internet and quickly visit websites to click on advertisements, including pop-ups. This generates revenue for the site hosting the advertisement or pop-up, since compensation is by "click." In "ransoms" the virus locks up the computer and displays a message like the one Mr. Brown's laptop received demanding payment and threatening law enforcement action, unless the computer operator sends a payment in a manner and to a recipient described in the "ransom note." Several indicators make it as likely as not that the pornographic images found in the laptop's cache were downloaded as the result of the FBI virus, rather than any action by Mr. Brown. Those indicators are: (a) there were no contemporaneous log-ons to any other websites; (b) the rapid speed at which the images downloaded; c) the fact that all of the images were small "thumbnail" or "popup" sized files; (d) there was no evidence of full-sized image files; and (e) Mr. Brown in his testimony and during the investigation has consistently denied using the computer to access pornographic images. In addition, the fact that Mr. Brown contacted the FBI indicates lack of apprehension about the consequences of contacting law enforcement authorities. Mr. Brown's decision to seek assistance from Staples was reasonable in light of the District's strict equipment use policies and the fact that the problem occurred when Mr. Brown was using the computer for personal reasons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, rescind the termination of Respondent, Stephen Brown, and award him back pay and full benefits for the period during which he was suspended, which began January 20, 2013, when Mr. Brown requested a hearing. DONE AND ENTERED this 21st day of August, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 21st day of August, 2013.
The Issue : The issue to be resolved in this matter concerns whether the Okaloosa County School Board (Board) (District) (Petitioner) has just cause to terminate the Respondent's employment as a tenured classroom teacher with a professional services contract (PSC) within the meaning of Section 1012.33(1)(a), Florida Statutes (2007), for alleged misconduct in office.
Findings Of Fact The Respondent, Jerome McIntosh, is a 41-year-old divorced father of one. He obtained his entire education, prior to college, in the Okaloosa County School District. He played football and basketball at Niceville High School and subsequently attended and played football at Tulane University, obtaining degrees in sociology and physical education. Thereafter, the Respondent played professional football for a time and then subsequently worked in middle management positions with firms in the Seattle, Washington, area. He returned to Okaloosa County in 2003, to pursue a Florida Teaching Certificate, which he obtained, and embarked on a public school teaching and coaching career. The Respondent was hired as a teacher at Lewis Middle School (Lewis), by the principal, Dr. Linda Smith, for the 2003- 2004 school year. He continued to teach and coach at Lewis through the end of the 2007-2008 school year. During five years at Lewis he taught Eighth Grade Reading, Sixth Grade Honors World Cultures, and Sixth Grade Language Arts, as well as serving as the school's head basketball coach for five years, as assistant football coach for four years and as head football coach during the last year. Mr. Billy Mikel became principal at Lewis in January 2007. The Respondent attained a professional services contract status (tenure) and received a promotion to head football coach by Mr. Mikel. The Respondent's performance evaluations showed that he met expectations in every subject area, including the 2007-2008 school year evaluation, prepared by Mr. Mikel. He has been very successful as a basketball and football coach. His two teams have won four county championships. He has been asked to continue to be basketball and football coach each year and for the 2008-2009 school year, Mr. Mikel asked him to be head coach of both teams. He was working with both teams through early June 2008, up until the time of his suspension. The District has had an electronic resources use policy in effect for approximately the last five years. That policy does not prohibit the personal use of school computers by instructional personnel, and does not have objective internet use guidelines or prohibitions. Rather, it requires any use to "honor the ethical norms associated with the highest standards of professional conduct." See Petitioner's Exhibit 10 in evidence. The Respondent maintains he never saw that policy prior to the termination episode. He did learn that there was an Internet access filter in place by the District, because when he made some computer research inquiries that were teaching- related, he found that certain inquiries were blocked. The District maintains, District wide, a content filter (Websense) that prevents all District computers from visiting websites inappropriate for teacher and student access. The District also has a general personnel policy, 6-9, which requires the destruction of any anonymous written communication addressed to its employees when they receive such a communication. That policy was in effect, and applicable, according to the Respondent, to the AFF anonymous website flyer, when it was obtained by Mr. Mikel and his staff. It is also true that the anonymous website flyer was not addressed to any School Board employee; it was merely created and then distributed, apparently mostly on mailboxes, in neighborhoods of students and parents associated with Lewis. The Respondent had an intermittent romantic relationship with a fellow teacher by the name of Joni Shaw. This was when both were sixth grade language art teachers, with the same work schedules, during the 2007-2008 school year. The two had dated each other intermittently since approximately the end of 2006, and through the greater part of the 2007-2008 school year. Ms. Shaw tended to be emotional and extremely jealous and the relationship was intermittent for these reasons. She was jealous of the Respondent's time, and virtually any woman who communicated with the Respondent outside her presence. She became particularly upset by his pre-existing friendship with a mutual teaching colleague, Cindy Janazzo. This issue extended over the entire course of their dating relationship. Both the Respondent and Ms. Shaw had access to each other and to each other's classrooms during the work day. Ms. Shaw had access to the Respondent's school computer in his room and knew his computer password or log-on information. Ms. Shaw used the Respondent's computer occasionally, with his permission and/or in his presence. Sometime in August 2007, the Respondent discovered that Ms. Shaw had begun an email message, addressed to a teaching colleague at Lewis whom he knew, and another District employee he did not know. Ms. Shaw left the draft email message on the Respondent's computer. The Respondent did not notice the name of the employee he did not know (Arant Sutsko) on the address line of the draft message. He was, however, upset that Ms. Shaw had used his school computer without his knowledge when he saw the draft email message that already included the text; "if I were smart, I would have left it at that," referring to another document she sent him about why they should "break up." Mr. McIntosh then added several sentences to that draft message in which he chastised Ms. Shaw for using his computer without his knowledge and made a brief comment about the need for trust for a relationship to survive. After adding a short paragraph so criticizing Ms. Shaw for using his computer in this way, he simply added Ms. Shaw's name on the cc line and sent the resulting document. This created the erroneous impression that he had authored the entire document and consciously decided to send it to Sutsko. All the remaining emails in that sequence on the school system computer, which were found objectionable by the District, were sent by Ms. Shaw. Each of these emails was sent out by her very late at night or early in the morning and each included inappropriate, personal, and sexually-charged references. She made inflammatory remarks about the Respondent in the emails and threatened to harm his reputation and career. Upon receiving a complaint from Ms. Sutsko, Superintendent Tibbets asked Assistant Superintendent Rodney Nobles to look into the matter. Ms. Sutsko raised the concern some five months after the dates of the emails she received. Mr. Nobles spoke separately to Ms. Shaw and to Mr. McIntosh about the subject of the emails sometime in January 2008. Mr. Nobles informed the Respondent that he needed to refrain from sending out emails like that one from his school computer. He did not indicate to the Respondent that this was a formal disciplinary action or a particularly serious matter and the admonition was only verbal. The concern expressed by Mr. Nobles was only to the effect that the Respondent had sent an email of a personal nature on the school computer to someone he did not know. He only showed the Respondent the one email that was sent in error to Sustko, in cautioning the Respondent to be careful about how he used the District's email system in the future. The Respondent never again sent such an email. Ms. Shaw often spent time at the Respondent's house. She often stayed-over one or two nights per week at the Respondent's home. She sometimes stayed there by herself while he was running an errand or at athletic practice or some other event which kept him away from home for a time. At other times she would arrive before he did, as both traveled to his home from separate locations. She sometime used his home computer while he was at home doing other things. Mr. McIntosh and Ms. Shaw sometimes went shopping together and she was aware of his Visa cards, which he usually used as debit cards, although they could be used for credit purposes as well. He generally carried one of the debit cards in his wallet, leaving the other one at his home. The Visa cards were used to debit bills and purchases to the Respondent's checking account and Ms. Shaw had access to the card numbers and expiration dates due to her relationship with the Respondent, and her frequent presence in his home, sometimes when he was absent. She also knew his personal information such as age, birth date, height, weight, etc. Sabrina Hupp, at times pertinent hereto, was an 18- year-old student who knew Ms. Shaw because she dated Ms. Shaw's son, Tyler, during 2007-2008. Ms. Hupp was acquainted with the Respondent through her interactions with the Respondent and Ms. Shaw in the context of Ms. Hupp's dating relationship with Tyler and the Respondent's dating relationship with Joni Shaw during that year. On one day in April 2008, Sabrina was at the Shaw's home with Tyler when she observed Ms. Shaw viewing an AFF website entry that included a semi-nude picture of a man. Ms. Shaw stated that it was a picture of the Respondent. In her testimony, in evidence by deposition, as Respondent's Exhibit 26, she noted that Ms. Shaw had the user name/password to enter the website (the user name was "eatmyass2008"). She watched as Ms. Shaw responded to women who had sent messages expressing an interest in meeting the Respondent, based upon the AFF profile of him on the site. The only messages Sabrina Hupp observed on the website were incoming messages from women. She observed no messages emanating from the Respondent. Ms. Hupp was aware of the intermittent nature of the dating relationship between the Respondent and Ms. Shaw. Ms. Shaw was apparently a friend of the Hupp family. On May 27, 2008, Sabrina's brother passed away, and Ms. Shaw attended the visitation and the funeral after Sabrina's brother's death. The visitation for Sabrina's brother was held on the evening of May 30, 2008. The Respondent had planned to meet Ms. Shaw at his home after she returned from the visitation. In the meantime, the Respondent was at the district football jamboree while Ms. Shaw was at the visitation. The Respondent was delayed leaving the jamboree and Ms. Shaw arrived at his house well before he did. A neighbor, David Mains, observed Ms. Shaw's arrival and observed that while she was waiting for the Respondent to arrive Ms. Shaw became extremely agitated and repeatedly paced between the house and her car, angrily slamming her car doors and the Respondent's gate and garage door as she did so. Mr. McIntosh returned home later that evening and they spent the night together at his home. At one point during that evening, during a phone conversation, Ms. Shaw informed the Respondent that she had already left his home (apparently impatient due to his non- arrival there). She told him she was already some 15 miles away on the Mid-Bay Bridge. At that time the Respondent was only two to three miles from his house. The essence of their phone conversation was to the effect that Ms. Shaw would return to his home, and meet him there. However, when he traveled the two or three miles distance to his home, from the point where he had the phone conversation, upon his arrival he found Ms. Shaw already there and emerging from his shower. It is thus inferred that Ms. Shaw misled the Respondent about leaving his home before the Respondent arrived, and, implicitly, concerning how much time she had spent alone at his home that evening. After spending the night together at the Respondent's home Ms. Shaw was departing to attend the funeral on the morning of May 31, 2008, when she discovered that her car would not start. The Respondent and the neighbor, David Mains, helped to start her car, so she could get to the funeral. Mr. Mains is the neighbor who saw the activity of Ms. Shaw at the Respondent's home the evening before. When Mr. Main saw the Respondent working on Ms. Shaw's car in the driveway he inquired about the argument that he believed Ms. Shaw and the Respondent had the prior evening. The Respondent told him that there had been no argument and the Respondent had no knowledge of any angry outburst by Ms. Shaw. In any event, the Respondent and Ms. Shaw spent that weekend together and attended a cookout the next day, Sunday, June 1, 2008, at the home of friends. Cindy Janazzo is a teaching colleague of both the Respondent and Ms. Shaw. She sent a text message to the Respondent during the cookout which aroused suspicion in Ms. Shaw. Ms. Shaw apparently felt that the text message was indicative of some private relationship between Ms. Janazzo and the Respondent, or was "code" for some understanding between them and she confronted the Respondent in an angry way about it at the cookout. In the text message Ms. Janazzo had told the Respondent "not to eat too much" even though, supposedly, she was unaware that the Respondent was at a cookout at the time. In any event, Ms. Shaw confronted the Respondent about the message in a loud hostile manner in front of the Respondent and his daughter. The Respondent became very upset at Ms. Shaw's hostile behavior in front of his daughter and friends and so he abruptly left the party, further infuriating Ms. Shaw. A day or two after the Sunday afternoon argument between the Respondent and Ms. Shaw, either on Monday, June 2 or Tuesday, June 3, someone other than the Respondent distributed a flyer in neighborhoods near Lewis Middle School, that alerted residents to the existence of an AFF website profile entry that purportedly presented a danger to the school students. The flyer encouraged those who received it to open that website and find the entry with the password and the user ID information provided in the flyer. The flyer included a fully clothed picture of the Respondent standing on a football field. The semi-nude photograph of the Respondent that had been stored in his home computer could be viewed on the AFF website entry referenced in the flyer as well. A resident who came into possession of one of the flyers purportedly notified school officials of it on the morning of Wednesday, June 4, 2008. Upon being alerted to the existence of the flyers, the school officials gathered as many of the flyers as they could to try to prevent their circulation in the community. The principal, Mr. Mikel, immediately used the secure information (password and user name identification), depicted on the flyer concerning the AFF website, to see what was on the site that involved the Respondent. He thereafter called the Respondent to his office to ask him if the semi-nude photograph that appeared on the site was his photograph. The photograph depicted a man from the neck down to the legs (no facial view) seated, unclothed, but holding his hands over his genital area. Both Mr. Mikel and later Mr. Foxworthy gave the Respondent several opportunities to tell them that the picture was not a picture of him, because it seemed to them that the picture depicted a white man. The Respondent, however, in all candor, told them a number of times that it actually was his picture. The Respondent, however, consistently denied that he was responsible for the website entry. The District officials who viewed the website did not ask for or obtain permission from the Respondent or anyone else to use the password and user ID to gain access to the private, secure website entry which was attributed to the Respondent. They did not get his permission to access private, secure billing information associated with the creation of that website (credit card or debit card information). When Mr. Mikel asked the Respondent about his credit cards in the meeting on June 4, he did so because he had already accessed the billing information associated with the website entry's creation and thus learned about the credit card and card number which had been used to pay the bill for the site. In response to that question, the Respondent told Mr. Mikel that he only had a debit card, because he used his Visa card for debit purposes primarily. The Respondent then showed the Visa card he normally carried in his wallet telling Mr. Mikel that it was a debit card. The Respondent maintains that he did not think at the time about the other card that he normally kept at his home, also using it primarily as a debit card. The Respondent was then asked by Mr. Mikel to stay home for the rest of that week, which was during part of the post-planning period. The Respondent was busy that week grading exams and entering grades on the computer. He returned for the rest of the post-planning session the following week (June 9-11, 2008). He states therefore, in essence, that he did not give further consideration to the earlier question by Mr. Mikel concerning his credit card. He maintains that he did not intentionally deceive Mr. Mikel about the debit and credit card questions and answers, but rather had simply not thought about the other card, which he normally kept at home, nor the fact that both cards could either be used as credit or debit cards. The school administrators in question informed the Respondent, the morning of June 4, 2008, of the Aff website entry. He professes not to have known of it before that time and stated that he never saw the website entry until he asked for and was provided a copy of the flyer by Mr. Mikel a day or so later, so he could close down/delete the AFF profile in question. Ms. Shaw, however, as shown by Sabrina Hupp's testimony, knew of the AFF website more than a month before the flyer was distributed in the community. As Ms. Hupp testified, sometime in April 2008, Ms. Shaw entered the website in question, was perusing it and even responded to some of the comments of women who had responded to the website. Ms. Shaw had ready access to the Respondent's home computer during times pertinent to this case in the Spring of 2008, where the semi-nude photo of the Respondent was stored. Ms. Shaw knew of the existence of the website entry long before the flyers were distributed and she knew of and had access to the Respondent's Visa debit/credit cards, as shown by the above- found facts, concerning her frequent sojourns at the Respondent's home and their shopping together. She had detailed personal information about the Respondent and possessed all information necessary to have created the website and the flyers. Moreover, Ms. Shaw had threatened to cause harm to the Respondent's professional standing previously, in an email. The flyers were publicly distributed, and the related website made public, only one or two days after the hostile argument situation arose at the cookout on Sunday afternoon, June 1, 2008. Ms. Shaw and the Respondent had a stormy, intermittent dating relationship through 2007 and the first half of 2008. She had a history of becoming quite jealous and upset regarding contacts of any nature by other women with the Respondent. She seems to be a person possessed of a hot temper and dramatic personality. On balance, the preponderant, persuasive evidence underlying the above Findings of Fact does not, in light of all the above-found circumstances, establish that the Respondent created the AFF website entry. The proven circumstances of the above Findings of Fact show that there is a substantial likelihood that Ms. Shaw created the AFF website entry and distributed the flyers in question. The above Findings of Fact show significant motive and opportunity in that regard on her part. The Respondent had a duty-free lunch period between 10:45 and 11:10 on each day at Lewis. He sometimes ate lunch alone in his classroom and on some of those occasions explored internet Sports Illustrated and Fox Sports websites seeking sports-related and general information of interest to him on the school computer. On some occasions he "clicked" on items or stories of interest that took him indirectly to other websites, including the website "Bugehoobs" on one occasion. In the course of intermittent internet browsing the Respondent viewed many images of women in swim suits or otherwise scantly clad over a period of several months. There were 1000 or more other images, not of that nature, that appeared on web pages he accessed over the several month period. The District had an Internet filtering system to block particular sites or images considered to be inappropriate to be viewed on school computer systems. The Respondent was not proven to have ever attempted to by-pass the District's Internet filtering system. The images he did view on the computer system were not blocked by the filtering system, there was no restriction of access to the sites and images he viewed. The Respondent never viewed any nude or pornographic images on any occasion on the school's computer. This is undisputed. Temporary Internet File (TIF) images are created automatically as to any image appearing on an access page, regardless of the reason the page was accessed. They are not permanent files created or monitored by a computer user and can be deleted by anyone who knows how to do so. The School District's computer technician, Mr. Mitchell, was unable to obtain the "websense report," which could be generated by the District's computer system, because of time, space, and server constraints. It would be the best source of information about the Respondent's school computer, including the sites he had accessed with that computer. Because of this Mr. Mitchell drew erroneous conclusions, based upon assumptions from his TIF review, to the effect that the Respondent had tried to bypass the District's web access filter. Mr. Mitchell informed Mr. Foxworthy and Mr. Mikel that many TIF images he found on the school computer in the Respondent's custody were pornographic in nature. Foxworthy thereupon informed the Respondent that he could either resign or be terminated for viewing pornographic images, before Foxworthy had even seen the images, later described by himself as "old- fashioned cheesecake." Mr. Foxworthy first met with the Respondent on Thursday, June 12, 2008, after the end of the school year. This was before Mr. McIntosh had been informed about anything concerning alleged inappropriate website access concerns with regard to the school computer. Mr. Foxworthy told the Respondent he could resign or be terminated, but not because of the private AFF website issue, but rather for accessing pornography on his school computer. Mr. McIntosh knew that was not true and asked to see the alleged pornographic images. A meeting for that purpose was scheduled and took place on Monday, June 16, 2008. With disciplinary action in the offing, the Respondent sought the assistance of a union representative regarding the proposed termination, after that June 12, 2008, meeting with Mr. Foxworthy. He attended the subsequent scheduled meeting on June 16, 2008, accompanied by union Executive Director Greg Butler. Also in attendance at the meeting were Mr. Mitchell, the District's computer technician and Mr. Mikel. Mr. Mitchell showed the Respondent and Mr. Butler a substantial number of randomly selected, purportedly objectionable swim suit images at that meeting, which were among a larger number of non- objectionable images. Mr. Butler and Mr. Mitchell confirmed that the remaining objectionable images were of a similar nature to those Butler had already viewed and all were considered non- pornographic. After leaving the meeting Mr. Butler called Mr. Foxworthy to find out if he had seen the objectionable images and learned that he had not. During their phone conversation Mr. Foxworthy acknowledged that he should view the images before terminating the Respondent. In fact, around the time of these events a swim suit competition was being conducted by the Northwest Florida News Herald, a newspaper of general circulation in Okaloosa County. The swimsuit competition included images of many women in swimsuits which were similar in nature to the allegedly objectionable images Mr. Butler was shown by Mr. Mitchell at the meeting of June 16, 2008. None of the websites the Respondent occasionally accessed, such as the Sports Illustrated or Fox Sports websites nor even the Bugehoobs website he accessed one time, indirectly, (by clicking on a news item concerning Tiger Woods) was blocked by the District's internet filtering system at the time the Respondent accessed them. None of the images he accessed could be deemed to be any image of pornography. Ms. Alexis Tibbetts, the Superintendent, formerly was the principal at Ft. Walton Beach High School. While she was the principal there she supervised a high school teacher by the name of Michelle McVay. During the approximate time the events happened leading up to the proposed termination of the Respondent, in the Spring of 2008, Ms. McVay voluntarily entered herself in the area daily newspaper's on-line swimsuit competition, by submitting a suggestive swimsuit photo or image of herself to the newspaper, through its website. Ms. Tibbets and the District took no disciplinary action against Ms. McVay, although it was suggested that she remove the photograph from the newspaper's website. The images entered in the swimsuit contest, including Ms. McVay's, were similar in nature to those the Respondent is charged with viewing on the school computer during his duty-free lunch hour (his own time). Ms. Tibbets has also known Ms. Shaw personally for some 15 years. As superintendent she once helped Ms. Shaw out of a serious legal problem involving potential prosecution for writing bad checks to the District. In contrast, Ms. Tibbets had never met the Respondent before the events in question. The events that triggered the investigation, the distribution of the flyers, happened within two days of the end of the school year. It generated very limited public awareness, as most of the flyers were retrieved. Newspaper coverage of these matters was limited to a period of only a few days after the Board's action in July 2008, and TV coverage was minimal or non-existent. Seven months elapsed between the events in question and the hearing. The Respondent has performed both his teaching and coaching duties well, over the five years he has been employed by the District. He was and remains well-liked and respected in his school community and there are no written records of any parent or student complaints or student removal requests received by the District concerning the Respondent in the aftermath of these events. The Respondent has demonstrated by preponderant, persuasive evidence that he can still be an effective teacher and coach employed by the Petitioner. The Respondent has not been accused of any criminal violation in conjunction with the matters in question. There has been no arrest on criminal charges and no activity he is accused of committing, with regard to the issues in this case, involves students in any way. The Respondent did not engage in misconduct in office in the context of his use of the internet on his personal school computer or school laptop. He did not violate school or District policies in the context of the allegation that he created a profile on a private, secure, adult website, as no student was involved, no school computer or resources were used and it was purely a private matter that happened to be made known by someone other than Mr. McIntosh. None of the Respondent's actions alleged to have been improper, individually or collectively rise to the level of misconduct in office or immorality, if such a charge were allowed to survive the Respondent's objection on due process grounds.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered dismissing the subject charges and reinstating the Respondent with back pay and related benefits, retirement credits, supplemental coaching pay, as described above, and that he be reimbursed for all categories of lost benefits that come within the proper scope of a "make whole" remedy. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 April, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Alexis Tibbetts Superintendent Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548 Michael E. Foxworthy Chief Officer, Human Relations Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548
The Issue Whether Respondent discriminated against Petitioner because of a handicap.
Findings Of Fact Sometime in July 2002, Petitioner was hired by Respondent as a Store Clerk (now known as a Sales Associate) at Store No. 3727 in Panama City, Florida. On March 1, 2003, Petitioner was promoted to Lead Sales Associate. Sometime around December 2005, Petitioner was diagnosed with absolute glaucoma and cataracts. As a result of her deteriorating eyesight, Petitioner asked the Store’s Manager, Michaelene Mellor, to be reassigned to her earlier Sales Associate position. Although there was some conflict in the evidence on whether Petitioner was reassigned as a “store stocker,” the better evidence demonstrated that Dollar General did not have a formal position known as a “store stocker.” Dollar General did have a position known as a “Sales Associate.” The Sales Associate position consisted of a variety of duties. Essential to the position were the following: assist in setting and maintaining planograms and programs; build merchandise displays; operate a cash register; itemize and total a customer’s purchase; collect payment from a customer and make change; operate a handheld scanner; and assist with ordering merchandise and maintaining inventory in the store. Planograms are shelving strips that contain shelf tags. They are the method that employees use to place merchandise in the store and on the shelves. They also help in inventory control. Petitioner was reassigned by Ms. Mellor. Her primary duties were to stock the store by using the planograms and shelf tags. Ms. Mellor advised the District Manager about the reassignment. However, she did not inform the District Manager that Petitioner would primarily be limited to stocking the store. Under Ms. Mellor’s tenure as Store Manager, Store 3727 was not properly managed. The store was dirty, had incorrect or out-of-date signage, incomplete or nonexistent planograms, merchandise on the floor and blocking the aisles, and a high incidence of inventory loss. Because of these problems, Ms. Mellor was terminated in October 2006. That same month, Thomas Rector became the Store Manager. His goal was to bring the store into compliance with Dollar General’s operation policies and to reduce the store’s inventory loss. At the time Mr. Rector took over Store 3727, the store had 4 positions and 7 employees allotted to it. The positions were Store Manager, Assistant Store Manager, Lead Sales Associate and Sales Associate. Each store was allotted a specific number of labor hours, excluding the hours worked by the manager, to cover the hours the store is open for business. Because Store 3727 had only 7 employees, only two or three employees worked during any given shift. With so few employees to cover each shift, it was essential that all employees be able to perform all the duties of the position that they filled. In this case, it was essential that Petitioner be able to read a scanner, run the cash register, make change, read a planogram, read a shelf tag, locate merchandise and stock merchandise. For the next several months, Mr. Rector observed that Petitioner could not clock herself in or out of work. More importantly, he observed that Petitioner had difficulties in stocking merchandise in the proper place. He observed that other employees had to sometimes help Petitioner with stocking. Improperly stocked items caused inventory control problems, increased the labor hours used by the store because time was required to correctly place store items and could result in lost revenue due to improper pricing. He also observed that she had trouble reading the scanner, the planograms and shelf tags. Based on his observations, Mr. Rector concluded that Petitioner could not fulfill the duties of a Sales Associate. He contacted the District Manager, Joe Peebles, and advised him that Petitioner could not perform the duties of a Sales Associate. On June 6, 2007, Mr. Peebles met with Petitioner. He read her the list of duties that a Sales Associate must perform and asked her if she felt she could perform those duties. Those duties are outlined above. Petitioner admitted she had difficulty with reading a planogram and operating a cash register. Likewise at the hearing, Petitioner admitted and demonstrated that she could not accurately read a planogram or shelf tag. She admitted she could not build a merchandise display, could not operate a cash register and could not make change for a customer. The evidence was clear that Petitioner could not perform the essential functions of a Sales Associate. Eventually, Petitioner was placed on leave and was told that, if her vision did not improve, she would be terminated. At no time did Petitioner ask for or identify any reasonable accommodation that could be made by Respondent to enable her to perform her duties as a Sales Associate and the evidence did not reveal that any such accommodations existed or were available. Ultimately, Petitioner was terminated because she could not perform the duties of a Sales Associate. The evidence did not demonstrate that her termination was discriminatory or the reasons given for her termination were pretextual. Finally, the evidence did not demonstrate that Petitioner’s vision impairment could be reasonably accommodated. Given these facts, Petitioner’s Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2009. COPIES FURNISHED: Larry Kranert, 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 Jean Marie Downing, Esquire 221 Thomas Drive Panama City Beach, Florida 32408 Alva L. Cross, Esquire 2300 SunTrust Financial Centre 401 East Jackson Street Tampa, Florida 33602
The Issue Whether the Respondent engaged in a discriminatory employment practice contrary to Chapter 760, Florida Statutes, by paying the Petitioner less that other similarly situated employees and by discharging the Petitioner based upon the Petitioner's race, national origin age and disability?
Findings Of Fact The Petitioner is a black male of Haitian extraction. His date of birth as given in his personnel records (Exhibit 7) is June 16, 1977. The Respondent is an employer within the statutory definition that engages in the rental of trailers, trucks, and moving supplies and sales and installation of equipment used in towing trailers. The Petitioner did not present any evidence regarding disability or age. The Petitioner was initially employed by the Respondent in 2002 as a customer service representative making $6.50/hour. Several month later, he received a raise to $7.00/hour, and before the end of the year, he received another raise to $7.50/hour. In the first half of 2003, the Petitioner was moved to the position of Assistant Moving Center Manager and his salary increased to $8.50/hour. In the fall, he received a raise to $9.25/hour and was given another raise to $11.50/hour before year's end. Testimony was received from Arthur Williams, who was the store manager and familiar with the operations of the company, although at the time of Petitioner's termination, he was new to the position and "in training." The pay for personnel employed by the Respondent is established nationwide and is based upon cost of living factors for an area. The wages paid to the Petitioner were slightly above the average for an area like Tallahassee, and reflected the Petitioner's hard work. His pay was in line with others doing similar work. The Petitioner alleged Clint Barrineau was paid more than he was paid. The evidence indicted that Barrineau had held in his career with the company, every position in its stores, including area manager. Barrineau had left the company for personal reasons, and upon his return in July 2003, was hired at $9.00/hour. Subsequently, he was promoted to the position of Hitch Professional at $11.50/hour. Notwithstanding Barrineau's prior experience, generally, it take less time for a person to be promoted as a hitch professional than as an assistant moving center manager reflecting hitch-related sales as an income center in the business. Both Barrineau and the Petitioner were making the same salary when the Petitioner was terminated. The Petitioner testified that he was denied promotion to store manager on two occasions. The Petitioner did not establish his qualifications for this position; however, evidence was received that the first person employed in that position was Henry Barnes a white male, and the second was Arthur Williams, a black male. Williams was brought in from outside the company; however, he had significant experience in retail sales management. The Petitioner's primary claim related to his discharge. The evidence presented indicated that on May 4, 2004, the Petitioner closed the store as the general manager on duty. As the manager on duty, it was his job to prepare the daily receipts for deposit in the bank, and retain a fixed amount for business operations on the next day. The Petitioner did this, and the bank deposit was made. On the following day, Arthur Williams, the store manager, arrived with Chuck Newell, the Field Relief Manager, who was helping to train Williams. The two men opened the store, which was duly locked, and Williams disarmed the alarm system. Williams opened the store safe, and counted the money. There was supposed to be $1000 kept in the safe for store operations. The count revealed only $800. Williams and Newell recounted and then search the safe and cash registers to ensure it had not been left in one of these places; however, the money was not present. Having assured themselves by checking and rechecking that the money was not present, they proceeded to open the store for business with the money on hand, and then check with the bank. They physically drove to the bank and checked the nightly deposit, which was correct, the deposit receipt having tallied with the money deposited. Williams and Newell returned to the store and called the alarm system center. This center is operated by U-Haul, and each authorized employee has his or her own code for disarming the alarm upon entering the store. If the code is not entered, or if the premise is broken into, the alarm goes off. The alarm center reported that there were no entries into the building after it was locked the previous night until Williams opened it o that morning. There was no evidence of the building being burgled. When the Petitioner reported to work on May 5, 2004, Williams confronted him about the missing money. The Petitioner did not have an explanation. As the manager closing the store, the Petitioner was solely and personally responsible for the deposit and for securing the money left on the premises. Although personnel were permitted to make up cash drawer shortages, the money in question was "store" money, and the amount involved was more significant that typical cash drawer shortages. Having determined that there was in fact a cash shortage and that the Petitioner was the person responsible for the accountability and security of the funds, Williams made the determination to discharge the Petitioner. Williams, although in training, was the sole individual responsible for the decision to discharge the Petitioner. As mentioned above, Williams is a black male. Williams testified further regarding other persons whom he had discharged. Ms. B. Heaulskamp was discharged for refusal to work her assigned schedule. Mr. Zak White, a white male, was discharged for a shortage in his cash drawer. Heaulskamp was provided a letter of termination; however, this was Williams' first termination, and he was advised it was company policy not to provide termination paperwork. He did not provide the Petitioner or White with such paperwork. Williams hired the Petitioner's replacement, William Westry, who was a black male. Williams has hired two Haitians since the Petitioner's termination, both of whom were still employed at the store.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing the Petitioner's claims. DONE AND ENTERED this 26th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 26th day of May, 2005. COPIES FURNISHED: Gueslin Vincent Post Office Box 20123 Tallahassee, Florida 32316 Jeremy P. Hertz, Esquire For & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
