The Issue The issue in this case is whether Petitioner was subjected to an unlawful employment practice, namely discrimination on the basis of age, with regard to Respondent's hiring of another applicant for the position sought by Petitioner. A secondary issue is whether Petitioner was constructively terminated from employment as a result of age discrimination.
Findings Of Fact Petitioner, Robert Jones, was born October 27, 1941. He was 52 years of age in March of 1994. Respondent is National Healthcare Center, a retirement home for elderly persons. Prior to March 28, 1994, the maintenance department at Respondent's facility consisted of one supervisory employee and one part-time employee, Jones. On March 28, 1994, Jones' immediate supervisor within the maintenance department resigned, effective April 8, 1994. In addition to his employment three days a week in the maintenance department, Jones also worked two days a week on the payroll of Respondent's facility in the housekeeping department. The administrator for Respondent's facility advertised the vacant maintenance supervisor position in the local newspaper. Approximately 35 applicants, including Petitioner, applied for the position. The administrator interviewed Petitioner and eight other applicants for the position, including the applicant who was eventually hired for the position. James French, the applicant hired for the position of maintenance supervisor, was serving as the head of maintenance at a 17 story, 163 unit condominium facility at the time of the interview. French supervised maintenance assistants at the condominium facility and was responsible for a wide array of maintenance services ranging from electrical, carpentry, plumbing, heating and air conditioning repairs to tests and maintenance of an emergency backup generator. The administrator, Steven Rykiel, was impressed by French and his eight years of maintenance experience. Rykiel was no novice in the hiring of personnel to run departments in facilities like Respondent's, having supervised the opening of a similar facility in Niceville, Florida where he hired department heads. Rykiel particularly liked French's expressed approach to performing maintenance: Fixing or repairing problems before the problems were pointed out by the boss. A comparison of French's candidacy for the maintenance supervisor position with Petitioner's reveals that French had recent experience in the supervision of maintenance personnel. While Petitioner had prior supervisory experience in other employment, he had not supervised employees since 1989. Rykiel followed his normal procedure in selecting the person to head the maintenance department at Respondent's facility. He reviewed the applications, interviewed the applicants, and checked the references of the one applicant who impressed him, James French. Ages of the respective applicants were not considered by Rykiel in his hiring decision. He was unaware of the age of either French or Petitioner at the time of their respective interviews. As previously noted, Petitioner was 52 years of age. French was 36 years of age. At the final hearing, Petitioner recanted his notarized statement in the Charge Of Discrimination dated July 18, 1994, which, in pertinent part, reads as follows: I trained the new supervisor and familiarized him with the inner workings of the nursing home until my resignation became effective on May 6, 1994. As explained by Petitioner at the final hearing, his sworn statement is technically untrue but he felt that he would be required to train the new supervisor and, consequently, decided to resign his position. Respondent's employee manual provides a procedure for employees to seek transfers and promotions. The manual does not set forth a directive requiring existing employees to be promoted over hiring a new employee. Specifically, the manual provides "[w]hen possible, a vacancy could be filled by a qualified employee of the health care center." Respondent does not have any policy that directs employment decisions be based on age of applicants. Rykiel did not hired French over Petitioner because of Petitioner's age. Petitioner was not told that he would have to train French. Consequently, there is no evidence to establish that such a directive placed Petitioner in intolerable working conditions. Although Petitioner has never failed, in the course of employment throughout his life, to obtain promotions sought by him, failure to obtain promotion in this instance does not constitute an intolerable working condition. Petitioner did not request a meeting with either Rykiel or any other higher superior in Respondent's organization, an opportunity provided by Respondent's procedures manual, prior to Petitioner's submittal of his voluntary resignation. Petitioner's resignation was submitted prior to French commencing employment with Respondent. Although Petitioner continued in Respondent's employment for a period of two days after French began work, Petitioner had little or no interaction with him. The hiring of French for the position of maintenance supervisor at Respondent's facility, as articulated by Respondent's personnel at the final hearing, was accomplished on the basis of legitimate, non-discriminatory reasons. French had more recent supervisory experience, experience in maintenance, and presented himself more dynamically in the course of the interview process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 8th day of November, 1995. DON W. DAVIS, 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 November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2. Accepted. Rejected, not materially dispositive. Rejected, subordinate to HO findings. 5.-6. Adopted by reference. Rejected, not materially dispositive. Rejected, relevance. Accepted. 10.-12. Rejected, not materially dispositive. 13. Rejected, Jones continued as the only maintenance person. No evidence suggests that he was ever permanently given the supervisor position. 14.-15. Accepted. 16.-25. Rejected, subordinate. 26. Accepted. 27.-34. Rejected, subordinate and not materially dispositive. 35. Rejected, relevance. 36.-38. Rejected, not materially dispositive. 39.-44. Rejected, subordinate to HO findings. 45.-53. Rejected, not materially dispositive. 54. Rejected, not supported by the weight of the evidence. 55.-57. Rejected, subordinate. Accepted. Rejected, mischaracterization of testimony, argumentative. 60.-63. Rejected, not materially dispositive. 64.-65. Rejected, relevance, weight of the evidence, mischaracterization of testimony. The budget increase reflected increased tasks being performed in house that were previously contracted. 66.-68. Rejected, not materially dispositive. 69. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-2. Accepted. 3. Rejected, relevance. 4.-19. Accepted, though not verbatim. COPIES FURNISHED: Jonathan S. Grout, Esq. Goldsmith & Grout, P.A. 307 W. Park Ave. Tallahassee, FL 32301 Cecile M. Scoon, Esq. 36 Oak Ave. Panama City, FL 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750 Dana Baird, Esquire Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750
Findings Of Fact Respondent, Colin Spruce, was issued a certified residential contractor's license, No. CR-COI5679, in an active status, in June, 1930, as an individual. This license was renewed, as an individual, for the 1981-83 licensing period, which expired on June 30, 1983. This license has not been renewed and is in a delinquent status. Respondent at no time qualified Angle Enterprises, Inc., to engage in contracting in Florida. James D. Roland and his wife own nine low-income family apartment buildings in Melbourne. On November 2, 1981, the Rolands signed a contract with Respondent to rehabilitate these apartments with funds provided on loan from the federal government. Respondent signed the contract on November 3, 1981, and began work on November 9, 1981. He fully completed one of the nine buildings and partially completed one other. He also did some work on the roofs of all. On or about January 13, 1982, Respondent called Mr. Roland's home and left word he would be out of town for several days. He never returned to work on the project. The work was 35 percent complete when Respondent abandoned the project. Later, Mr. Roland completed the project himself at an overrun of approximately $2,500 above the contract price. Aside from one minor modification which cost an additional $261, there were no changes to the plans and specifications when Roland took over. It was only later that Roland got word that the subcontractors had not been paid. He paid off those who filed liens against his property. During the course of his work on the Rolands' property, Respondent, in his own name or as Angle Enterprises, Inc., entered into agreements with several subcontractors, including Scotty's, Berger Roofing, Melbourne Insulation, City Gas Co., and Jackson Electric, all of which provided either materials or services, or both, for this project. Scotty's provided materials valued at $16,513.24, but was paid only $6,751.46, leaving an unpaid balance of $9,761.78 for which the company filed a lien against the Rolands' property. This sum, left unpaid by Respondent, was subsequently paid by Mr. Roland. Berger Roofing, Inc., furnished labor and materials for the porch roofs on each of the project's buildings during late November and early December, 1981, and was due $750 from Respondent for this job. Respondent did not ever pay, and Berger also filed a lien against the property. This lien was also satisfied through payment by Mr. Roland. Melbourne Insulation furnished labor and materials to the project through contract with Respondent for approximately $2,000 of which only one-half was paid by Respondent. The balance has not been paid, though no lien was filed here because of an oversight by claimant's lawyer. City Gas Company is still owed $1,524.75 of the $4,784.33 it billed Respondent for labor and materials (heaters) it provided for the project for a contract it had with Respondent dated December 1, 1981. No lien was filed for the unpaid amount here, either. Jackson Electric performed electrical work on the project which included removing plates, switches, and fixtures from one of the buildings in November, 1981, based on an agreement with Respondent. The contractor was about to start work on a second building in the project, but due to the fact that Respondent was a slow payer on previous jobs done for him, the additional work was not started and Jackson was never paid for the work done. Respondent also failed to pay the wages he owed to several of his employees, including David Jones and Carl Cramer. Jones worked for Angle Enterprises, the company owned by Respondent and under which he did business from November, 1981, to January, 1982, in a job on Roland's buildings which involved stripping the roofs off the buildings and painting. He was not paid for his final week of work, which ended on January 15, 1982. He is owed for 32 hours work at $5.75 per hour. He considered himself a close personal friend of Respondent who gave no advance notice that he would not pay his employees. Cramer and a third employee (Mr. Kibben) also were not paid their earned wages by Respondent. He was working at the time in question as a carpenter/foreman for Respondent. On the last morning of work, Friday, January 15, 1982, Respondent told him that the accountant would come by and pay him and the other men that afternoon. Respondent then left and was not seen again, nor was the accountant or the wages. Cramer was due 32 hours pay at $7 per hour. During the time he was working on this project, Respondent submitted four draw requests and was paid on three. These draws were submitted to Mr. Grinstead at the Community Development Office for approval and were approved when Grinstead checked to see that the approximate work was done. Mr. Grinstead was at the project site almost every day. The last time he saw Respondent there was on or about January 15, 1982. As of that date, the work was not completed, but Respondent did not go back. Mr. Grinstead approved three draws. These were: December 10, 1981, for $13,000 payable to Roland, Respondent, and Scotty's; December 21, 1981, for 54,000, payable to Respondent; and January 8, 1982, for $13,000 payable to Roland, Respondent, and Scotty's. A fourth draw request on December 12, 1981, for $2,400 was denied by Y. Grinstead because sufficient additional work was not done to justify it. All three approved checks were cashed. As to the check for $13,000 dated January 8, 1982, Roland signed it and Respondent took it to Scotty's, where he convinced the credit manager to endorse it in exchange for his, Respondent's (Angle Enterprises'), check dated January 11, 1982, in the amount of $7,446.61. Thereafter, the same day, Respondent signed a stop-payment order at his bank on which that check was drawn, listing as his reason for that action a corporate reorganization. Payment was stopped, and Scotty's was not paid by Respondent. On the basis of Respondent's conduct regarding the check, an information charging him with altering a worthless check and grand theft (second degree) was filed in the Circuit Court in Brevard County, Florida, on June 1, 1982. Thereafter, on November 30, 1982, Respondent entered a plea of guilty to both offenses and was placed on probation for five years. Conditions of probation included full restitution of the $13,000 and a prohibition from engaging in construction or repair services without permission of the court.
Recommendation Based on the foregoing, it is, therefore: RECOMMENDED: That Respondent's certified residential contractor's license be revoked. RECOMMENDED in Tallahassee this 5th day of April, 1984. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Colin Spruce 1001 SW Conover Avenue Palm Bay, Florida 32907 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, 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 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Petitioner is responsible for operating the public schools in the Sarasota County School District (District) and for hiring, firing, and overseeing both instructional employees and non-instructional "educational support" employees. Respondent has been a School Board employee in the Information Technology (IT) department since November 1991. Ms. Ehlers is an "educational support employee" within the meaning of Section 1012.40, Florida Statutes (2009);2 and for purposes of collective bargaining unit categorization, she is a "classified," as opposed to an "instructional," employee. Until the summer of 2009, Ms. Ehlers was a COBOL programmer. Due to budget cuts and advancing technology that rendered COBOL programming outdated, the positions of Ms. Ehlers and other COBOL programmers were targeted for elimination as of June 30, 2009, as part of a "staffing" process to reduce the District's workforce. The requirements for implementing workforce reductions are set forth in the Collective Bargaining Agreement (CBA) between the School Board and the union, Sarasota Classified/Teachers Association (union). In accordance with the CBA's terms, Ms. Ehlers was permitted to displace or "bump" another employee in the IT department, in the state reports coordinator position. Respondent assumed the state reports coordinator position, reporting directly to Barbara Brannen, who is the manager of Data Analysis and Recording for the District. Ms. Brannen manages a small unit with tremendous responsibility. With the assistance of four employees, including the state reports coordinator, Ms. Brannon is responsible for reporting all of the District's student and staff data in reports called "surveys" to the state and federal governments. The survey data submitted to the state Department of Education serves as the predicate for roughly 78 percent of the District's funding. Errors in these surveys can be very costly: under-reporting data means receiving less funding than the District is entitled to; and over-reporting data means overpayments discovered in audits, subjecting the District to penalties. The data is also used to determine compliance with state and federal regulations, such as the federal "No Child Left Behind" program. The data also serves to inform decision- makers at the state level for legislation and other policymaking and at the District level for staffing and resource allocation. Ms. Brannen has earned a reputation as an exacting task-master who sets very high standards for herself and the employees she supervises. Ms. Brannen can be intense and demanding, with little tolerance for mistakes. The work is stressful, but the high standards are necessary because the stakes are so high. Respondent's brief time in the state reports coordinator position was tumultuous, with nothing but discord and negativity, as explained in more detail below. Respondent's conduct during this period of less than one year, considered in the context of Respondent's employment history with the School Board, led the Superintendent to notify Ms. Ehlers by letter dated June 2, 2010, that the Superintendent intended to recommend to the School Board that Respondent's employment be terminated. The Superintendent's letter summarized the four separate, but related, categories of conduct that served as the bases for recommending termination, as follows: Respondent had created a hostile work environment within the IT department by such behavior as yelling, making threatening comments, acting in ways perceived as threatening, slamming doors, listening in on others' conversations, and following others in a stalking-type manner; Respondent violated a November 2009 mediation agreement that she entered into with her supervisor, Ms. Brannen, which had been attempted in lieu of discipline to address the discord; Respondent was insubordinate at a "Weingarten" meeting held on April 13, 2010, during which she yelled at her department director and called the department director a liar; and Respondent failed to comply with her department director's request to meet on April 15, 2010. The Superintendent concluded that in each instance, Respondent was insubordinate and in violation of the Code of Professional Conduct of the Non-Instructional Support Staff Employed by the School Board (Code of Professional Conduct), warranting disciplinary action. Collectively, the conduct constituted a flagrant violation, providing sufficient cause to recommend termination. "Just cause" is the standard required by the CBA for all disciplinary actions against non-instructional personnel such as Respondent. Normally, the following progressive disciplinary steps are administered: (1) verbal reprimand; written reprimand; (3) suspension; and (4) termination. However, progressive discipline is not required in instances of flagrant violation. In addition to the formal disciplinary steps recognized by the CBA, administrators may opt for informal steps to address concerns before resorting to formal discipline. These steps, intended to clarify expectations, may include informal counseling and issuance of Memoranda or Letters of Instruction. Although these informal steps are non-punitive themselves, the failure to abide by the clarified expectations may warrant discipline. School Board administrators also occasionally use mediation as a tool to address concerns instead of immediately jumping to discipline. If a mediation agreement is reached as a result of this process and sets forth agreed conduct, violations of that agreement can warrant discipline. Respondent's employment history includes the following informal non-disciplinary steps taken to call to Respondent's attention concerns with her behavior: November 14, 2001, Memorandum of Instruction, concerning Respondent's conduct, which was described as disrespectful, unprofessional, argumentative, condescending, and uncivil. November 26, 2001, Memorandum of Instruction, regarding Respondent's inappropriate, disruptive, and disrespectful behavior towards her co-workers and supervisor. Respondent was reminded that if she thought issues needed to be addressed, she had to use proper channels, professional methods, and appropriate behavior. February 9, 2009, Memorandum of Instruction, directing Respondent to comply with the Code of Ethics. November 16, 2009, Letter of Instruction, emphasizing the importance of properly completing timecards and blue sheets used to request time off. November 2009 mediation process, resulting in a Mediation Agreement signed on November 25, 2009, by Respondent and Barbara Brannen, undertaken in lieu of discipline. Respondent's prior formal disciplinary history includes a September 17, 2002, verbal reprimand for insubordination, following two attempts to clarify expectations via Memoranda of Instruction issued in November 2001. Respondent's Change to State Reports Coordination In early 2009, a budget shortfall was identified for the upcoming fiscal year that would begin on July 1, 2009. This started a staffing process in accordance with the CBA's requirements to plan for the necessary reduction in the District's workforce. Administration attempted to minimize the impact of budget reductions on the classroom. Administration also decided to give potentially affected employees as much advance notice as possible under the circumstances. That way, the employees could consider their options, including whether they would be in a position to take advantage of the CBA's bumping process. The CBA sets forth a detailed process that, in general terms, permits an employee whose position is eliminated to displace, or bump, a less senior employee in the same department, who holds a position for which the more senior employee is qualified. The newly displaced employee is then permitted to use the same process to bump a less senior employee, and so on. The bumping process is fairly mechanical and is monitored by a number of persons within the administration and the union to ensure that the CBA's rules are followed. On February 4, 2009, Leona Collesano, the director of the IT department, and Robert Darois, Respondent's immediate supervisor, notified Respondent that her COBOL programming position had been targeted for potential elimination as of June 30, 2009. The next day, February 5, 2009, Respondent called Tracey Craft, an IT employee, to announce to Ms. Craft in an unfriendly manner that Respondent intended to take her position. Ms. Craft was upset and complained to her supervisor, Ms. Collesano. After consulting with Human Resources, Ms. Collesano spoke with Respondent and told her to not tell any other employees that Respondent was going to take their position. Respondent admitted making the phone call, but said that she placed the call from her cell phone on her lunch hour, as if to suggest that she was free to harass other employees with threats of taking their jobs as long she was physically away from the workplace. That same day, after Ms. Collesano admonished Respondent to stop telling other employees she was going to be displacing them, Respondent sent an email to the Superintendent, all members of the School Board, the union president, and others. Respondent's email complained that she was "being harassed by" Ms. Collesano and stated that "I can talk to anyone I want when I am not at work or the job site." The next day, February 6, 2009, Respondent emailed Robert Hanson, then head of the IT department and Ms. Collesano's supervisor. Respondent stated that "Leona harassed me and her behavior was VERY unprofessional. She was very nasty." Respondent requested that "a formal complaint be filed" and said that she wanted "a response in 3 to 5 days." The record is replete with this behavior pattern by Respondent--whenever someone criticized or found fault with Respondent, she reacted very defensively, turning the situation around to blame or file a complaint against the person who criticized her. In this way, Respondent attempted to deflect the focus away from her own behavior. On February 9, 2009, Ms. Collesano and Mr. Darois met with Respondent to provide her a Memorandum of Instruction that emphasized Respondent's obligation to abide by the Code of Ethics. During the meeting, Respondent slammed her hand on the table, called Ms. Collesano a "liar," asked whether Ms. Collesano had ever managed, said that the "place is like a kindergarten," and accused Ms. Collesano of having "it out for me since you came here."3 For many days after that meeting, Respondent would walk past Ms. Collesano's office frequently (such as four times in 30 minutes), peer in, read what Ms. Collesano had written on her white board, and make "tssk" sounds. On February 24, 2009, Respondent filed an equity complaint against Ms. Collesano alleging discrimination based on "sexual orientation." The substance of Respondent's complaint was that Ms. Collesano was "mean," that she ran her department "like a kindergarten," that she used "her position negligently like a police officer with too much authority," that she was "VERY unprofessional," and that she had once asked Respondent about her dating life. Administration immediately conducted an investigation into Respondent's complaint, but found it to be without merit. Also on about February 24, 2009, Respondent confronted Tracey Craft at the Corkscrew Deli, a restaurant within walking distance of the Landings (the School Board administration's main office complex), where they both worked. Respondent yelled at Ms. Craft, "Liar!" Presumably this was because Ms. Craft had complained about Respondent's phone call threatening to take Ms. Craft's job. Although Respondent denied this incident occurred, both Ms. Craft and another eyewitness, Susie Manning, confirmed that it occurred as described, and their testimony is found to be more credible than Respondent's denial. During the spring of 2009, Respondent went to work identifying and making the case for her qualifications for other positions in the IT department. She identified four positions that she believed she qualified for and had more seniority than the person then in the position. Two of the positions, District data support coordinator and state reports coordinator, would result in a small pay reduction for Respondent, while the other two positions would result in a significant pay reduction. Despite Respondent's belief that she qualified for the District data support coordinator job, it was determined that Respondent did not meet the minimum qualifications for that position. At that point, Respondent targeted the state reports coordinator position, which had been held by Valeta Clark for three years. Ms. Brannen, the direct supervisor of the state reports coordinator, and Ms. Collesano, Ms. Brannen's supervisor as the IT department director, both contended to the Human Resources department that Respondent did not meet the minimum qualifications for the position. The Superintendent also expressed her reservations about whether Respondent's skill set was adequate, but determined that if Human Resources concluded that Respondent met the minimum qualifications for the position, the Superintendent would agree with that determination. Respondent actively sought to qualify herself for the position of state reports coordinator. She wrote emails and memos, had meetings, took tests, and otherwise pursued the position. Respondent claimed to Human Resources personnel that "I can do the job better than anyone that has been in that position before." Ultimately, the Human Resources department concluded that Respondent met the minimum qualifications for the position. Accordingly, Respondent displaced Ms. Clark as state reports coordinator. Respondent's Campaign Against Ms. Brannen Before Ms. Ehlers assumed the state reports coordinator position, she had never been supervised by Ms. Brannen. In fact, except for a six-month project they worked on together in 1996 or 1997, Respondent and Ms. Brannen had little to no interaction. They worked on different sides of different floors of what was called the "green awning building" in the Landings office complex, with Ms. Ehlers working with the COBOL programmers on the south side of the second floor, while Ms. Brannen's unit was on the north side of the first floor. Even while Ms. Ehlers was actively campaigning to take the state reports coordinator job, she began an equally vigorous campaign against Ms. Brannen. Ms. Ehlers would tell virtually anyone who would listen to her that Ms. Brannen was horrible to work for and that Ms. Ehlers would not tolerate any abuse from Ms. Brannen. Respondent made a point of telling this to fellow employees, to individuals she hardly knew, to the union, to the Human Resources department, and others. Respondent made it known that she was poised to file complaints against Ms. Brannen, and she threatened to wire herself with a tape recorder to record every interaction with Ms. Brannen. For example, when Ms. Ehlers was still a programmer, she worked on the opposite side of a cubicle wall from Jeanette Pifer. Ms. Pifer testified that Ms. Ehlers constantly made derogatory statements about Ms. Brannen, announcing to Ms. Pifer that "she wasn't going to put up with Barbara's crap" and that "Barbara was a bad person to work for." Respondent's derogatory comments did not always stop with Ms. Brannen, but sometimes continued up the chain of command. Respondent made a highly insulting comment about Ms. Collesano and Ms. Collesano's daughter to Ms. Pifer, stating that Ms. Collesano's daughter probably was as big a slut as her mother. Respondent also told Ms. Pifer that someone should "blow up" Robert Hanson's car. At the time, Robert Hanson was head of the IT department and was Ms. Collesano's supervisor. Ms. Pifer's testimony was credible and is accepted. On May 26, 2009, Respondent sent the following email to several persons in the IT department, Human Resources, and the union regarding her upcoming position working for Ms. Brannen: My placement has sure sparked comments from the vast majority of my department, employees in the school district outside my department, and the general public. I know this is a small town but this is getting ridiculous. I have received phone calls at my home, people have approached me outside of work and on the job about my placement working for Barbara Brannen. People have expressed their condolences, rolled their eyes, made snide remarks about Barbara and people in the general public have heard about others that have worked for her and worry for me. I know Barbara's history and so do a lot of other people. It's no secret. I hear negative comments daily from administrators and employees on my floor. I hear people complaining about having to be in meetings with Barbara and noone [sic] wants to be around her. Several employees/administrators have told me or insinuated that Barbara can't stand me and will find a way to fire me. This has created more concern and anxiety for me. Robert Hanson responded to Ms. Ehlers that this "message is over the top in negativity, cynicism, and hearsay." He advised Ms. Ehlers to focus on her performance and "learn this new set of skills," and if she did so, she would have no issues with Ms. Brannen or her superiors. Ms. Ehlers replied that she was going into the new position with a very positive attitude, but could not resist adding that "Barbara is very capable of destroying my best intentions. I can not [sic] help the comments that have been made to me by others, but I have heard them for years. I am very aware of Barbara's history and will not tolerate what others have." The more credible evidence establishes that despite Respondent's attempt to suggest she had a positive attitude (while adding more negative remarks), Ms. Ehlers went into the state reports coordinator position with a very negative attitude. Respondent's focus was squarely on finding reasons to complain about Ms. Brannen, instead of on learning and mastering the new skills and new procedures necessary to become effective in her new position. Respondent Assumes New Position and Continues Campaign Against Ms. Brannen Due to the critical importance of the state reports coordinator position to the District and concerns about Ms. Ehlers' skills to carry out her new duties, Ms. Brannen asked her supervisor, Ms. Collesano, to release Ms. Ehlers a full month early from her programming position, while Ms. Clark was still in the state reports coordinator position. That way, Ms. Clark, who had performed very capably in her position, could train Ms. Ehlers. For this sort of transition in the District, while some overlap for training purposes is attempted, an overlap with two employees in the same position for as long as one month is uncommon. Nonetheless, Ms. Collesano authorized the lengthy overlap to help Respondent learn her new position. Respondent was asked to report to Ms. Brannen on June 3, 2009, instead of July 1, 2009. On June 3, 2009, Respondent began training with Ms. Clark to be the state reports coordinator. While Respondent characterized this period as difficult, accusing Ms. Clark of being jealous of her and mad that Respondent bumped her out of the position, the more credible evidence established that Ms. Clark handled herself professionally and worked hard to train Respondent. Ms. Clark provided Respondent with a great deal of information, including notebooks she put together with instructions and samples showing how to set up responses to surveys, to enable Respondent to succeed in the position. During the training period, Respondent made numerous negative comments to Ms. Clark about Ms. Brannen similar to the comments described above that Respondent made to Ms. Pifer. Respondent also told Ms. Clark that Ms. Collesano and Mr. Hanson were "liars" and "can't be trusted." Ms. Clark credibly testified that Respondent told Ms. Clark that she was able to convince Mike Jones and Roy Sprinkle in the Human Resources department that she was qualified for the state reports coordinator position and that Respondent could talk them into anything where computers were concerned, because anything to do with computers went over their heads. As Respondent said this, she gestured with her hand passing over the top of her head to illustrate the comment. Respondent made a lot of mistakes during her training period, and she did not receive constructive criticism well. When Ms. Clark or Ms. Brannen pointed out Respondent's errors, Respondent became very defensive, saying that she was human and it could not be helped. When either Ms. Clark or Ms. Brannen attempted to explain what was at stake and how the errors could affect the District, Respondent reacted abruptly and loudly, with statements such as "You don't need to tell me that"; "I'm an adult"; or "You don't need to tell me, I know." Ultimately, on June 25, 2009, Ms. Clark submitted a written complaint to Ms. Brannen concerning Respondent's bad behavior and performance issues and left the complaint on Ms. Brannen's desk. The complaint disappeared, but Respondent confronted Ms. Clark later that day suggesting that she at least saw and read the complaint, if she did not actually cause it to disappear. According to Ms. Clark's credible testimony, Respondent physically confronted Ms. Clark in the women's bathroom, gesturing angrily at Ms. Clark and accusing her of being a "backstabber." This confrontation caused Ms. Clark to fear for her safety. She went to Ms. Collesano, visibly upset and nearly in tears, and requested that she be relieved of her position and the overlap training immediately. Ms. Collesano granted her request, cutting Respondent's training short by about three work days. Ms. Ehlers denies confronting Ms. Clark, and there were no eyewitnesses in the bathroom. However, Ms. Ehlers sent an email that same day to Ms. Collesano, stating that an (unnamed) employee approached Ms. Ehlers "and said that Valeta [Clark] is back stabbing me. She is making up stories that I have said things about Barbara . . . . Valeta is very jealous that I am taking her position from her." Ms. Ehlers then proceeded to accuse Ms. Clark of taking an extended lunch without reporting it on her time card, which Respondent characterized as "insubordinate." This email, in which Respondent used the same "backstabber" terminology as Ms. Clark said that Respondent used when she confronted Ms. Clark in the bathroom, adds credence to Ms. Clark's version of this incident. In addition, several witnesses confirmed seeing Ms. Clark visibly shaken shortly after this incident occurred. While at times Ms. Ehlers would insist that Ms. Clark was "jealous" that Ms. Ehlers was taking her position, at other times Respondent would include Ms. Clark in the class of "everybody" who knew that Ms. Brannen was impossible to work for, as well as the class of "nobody" who could stand working for Ms. Brannen. Neither extreme of these inconsistent positions is supported by the more credible evidence. Instead, the evidence showed that Ms. Clark did well in the state reports coordinator position and worked well over a three-year period under the supervision of Ms. Brannen. At the same time, Ms. Clark was professional about the bumping process, assisted with the transition as much as possible, considering the lack of a receptive trainee, and took advantage of the opportunities presented to her in other positions to which she was permitted to move. Ms. Clark was not the only recipient of Ms. Ehlers' negative comments about Ms. Brannen during the June 2009 transition-training period. Diane Biddle, a District employee in a completely different department, complained to Ms. Collesano that Respondent had approached Ms. Biddle in late June 2009, in a public area in Ms. Biddle's department, and made negative comments about Ms. Brannen in a loud voice so that others could hear. Specifically, Respondent came over to Ms. Biddle's area to deliver some data changes and told Ms. Biddle that she was Valeta Clark's replacement. Respondent volunteered to Ms. Biddle that Respondent could handle the work, but was not going to take the abuse from Ms. Brannen. Respondent continued loudly that she was going to file grievances against Ms. Brannen and complain to Human Resources and that she had already warned the Human Resources department and the union that she was not taking Ms. Brannen's abuse. When asked about these comments made to Ms. Biddle, Respondent said that she did not know who Diane Biddle was. That response adds credence to the record evidence tending to suggest that Respondent widely disseminated her negative comments about Ms. Brannen, with no regard to whether sharing her negative views with someone she knew or whether she made her comments in a way and in a setting where others could easily overhear. In July and August 2009, Ms. Brannen took up where Ms. Clark had left off and attempted to work with and train Respondent. By late August, Ms. Brannen called a formal meeting with Respondent to discuss the issues because Respondent continued to exhibit a negative and defensive attitude toward Ms. Brannen, toward training, and toward attempts to correct Respondent's mistakes. That effort did not help, and the friction continued through September. Respondent continued to go out of her way to initiate negative comments about Ms. Brannen in all kinds of settings, even to people who were complete strangers to her. For example, at a 2009 back-to-school event at Sarasota Middle School where Respondent's daughter attended school, Respondent approached someone she had never met before and spontaneously told this person how horrible Ms. Brannen was. It turns out that the person she approached, Maribeth Hamilton, was the school's registrar, who regularly had to deal with Ms. Brannen's unit (now including Respondent). New Audience for Respondent's Complaints On October 6, 2009, Scott Lempe, the District's chief operating officer,4 assumed supervisory oversight of the IT department from Mr. Hanson, who had resigned. Thus, Mr. Lempe became Ms. Collesano's immediate supervisor. Before this time, Mr. Lempe had never been in the supervisory line of authority over Respondent, Ms. Brannen, or Ms. Collesano. By October 8, 2009, just two days after Mr. Lempe took over as head of the IT department, Respondent was in Mr. Lempe's office. During that meeting, Respondent complained about Ms. Brannen. Mr. Lempe told Respondent that he would look into her complaints. According to Respondent, Mr. Lempe told her to send him emails for a two-week period to update him. Respondent reacted by showering Mr. Lempe with numerous email complaints about Ms. Brannen on behalf of herself; at least as often, Respondent's emails would raise complaints about Ms. Brannen on behalf of others and complaints vaguely on behalf of "people" (i.e., "People are fed up."). Although Respondent testified that Mr. Lempe asked for email reports for two weeks, Respondent acknowledged that she continued to send numerous complaint emails to Mr. Lempe after that two-week period. Finally, on October 27, 2009, Mr. Lempe responded to yet another email from Respondent by stating that he understood her concerns, "and I want these emails to stop." The emails did not stop. After several more email complaints, Mr. Lempe wrote a second time to Respondent on October 29, 2009, with the following directive: "I asked you to stop this, and remain professional for the time being. I don't want to get another email from you about this." Still, the emails continued. In just one of several emails sent on November 4, 2009, Respondent complained: "Barbara works against everybody. Barbara does not work as a team. Barbara doesn't like it that I took Valeta away from her. Valeta is thrilled to be out of here just like everyone else." After two ignored directives, Mr. Lempe called a "Weingarten meeting" to address Respondent's conduct through November 4, 2009, in continuing to send email complaints to Mr. Lempe. A Weingarten meeting is a fact-finding meeting with discipline as a potential outcome. For that reason, an employee's union representative is invited to attend. Present at the November 6, 2009, Weingarten meeting was Mr. Lempe; his assistant, Rita Fletcher, to take minutes; Respondent; and Dee White, Respondent's union representative. At the conclusion of the meeting, Mr. Lempe chose not to discipline Respondent for her insubordination. Instead, Mr. Lempe requested that Respondent participate in mediation with Ms. Brannen in an effort to resolve the problems that Respondent had working for Ms. Brannen. Mr. Lempe requested that Doug Berger conduct the mediation, and he did not require any specific resolution. Mr. Berger is a certified mediator who was a District employee at that time. Mr. Berger generally did not know Respondent or Ms. Brannen, although he had previously taught a course taken by Respondent (see Endnote 3). Respondent's union representative commented favorably about Mr. Lempe's suggestion for mediation, noting that mediation is not suggested by many administrators. She thought mediation was a good idea "instead of automatically hitting somebody with a disciplinary action" and that Mr. Berger was a "really good professional" to facilitate the effort. Respondent and Ms. Brannen participated in numerous mediation sessions in November 2009, meeting both separately and jointly with Mr. Berger. Mr. Berger described this process as sometimes difficult and emotional, although he characterized Ms. Brannen as keeping her cool and acting professionally throughout the process, while he described Respondent as often emotional. Ultimately a mediation agreement was drafted and finalized, and both Respondent and Ms. Brannen voluntarily signed the final mediation agreement on November 25, 2009. The mediation agreement included the following terms in pertinent part: Respondent and Ms. Brannen will call inappropriate behavior as it occurs (communicating with each other instead of complaining about the behavior to third parties); Respondent will redirect legitimate complaints and concerns from others to Ms. Brannen for resolution (instead of making complaints or voicing concerns attributed to others on their behalf); Respondent will not participate in office gossip with other employees regarding Ms. Brannen, but instead will address issues directly with Ms. Brannen; If there are issues that cannot be resolved between the two of them, proper procedures will be followed to address and resolve the issues, including utilizing the mediation process again as necessary; Due to the nature of their work, Ms. Brannen will insist on accuracy and meeting deadlines. Ms. Brannen will provide feedback to Respondent in a constructive manner regarding her performance. Respondent did not abide by the mediation agreement. Instead, Respondent continued to engage in the same problematic conduct that she had agreed to stop or change when she signed the agreement. As one example, Respondent continued to tell Ms. Brannen vaguely and generally that "registrars" were confused by instructions, but that they were afraid to go to Ms. Brannen with questions and instead were calling Respondent to express their concerns and fears. Ms. Brannen would remind Respondent that she had agreed to pass on these types of complaints and concerns to Ms. Brannen so she could address them when they happened. Once, when pressed for names of "registrars" who had "called," Respondent started back-pedaling, and after much dancing around, Respondent ultimately admitted that there was only one registrar who had not called, but sent an email and that email had been forwarded to Ms. Brannen. Ms. Brannen had immediately contacted that registrar, and it turned out there was no confusion, fear, or concerns at all; the registrar was simply confirming the instructions. Respondent also continued to engage in office gossip about Ms. Brannen and complain about Ms. Brannen to others, including Oscar Saliba, a fellow former COBOL programmer, and Mr. Berger, the mediator. Respondent refused to acknowledge that she ever violated the mediation agreement, continuing to insist at the final hearing that she did not violate the agreement. However, Respondent acknowledged that she was obligated by the agreement she signed to bring up problems directly with Ms. Brannen when they occurred. Respondent admitted that she did not do that. Respondent claimed it would do no good to comply with the mediation agreement because "I never got any results, anyway." But Respondent never asked to reopen the mediation agreement. Instead, just as before, she took her issues to co-workers or anyone else who would listen to her complain about Ms. Brannen. January 2010 Performance Evaluation and Resulting Complaints On January 19, 2010, Ms. Brannen met with Respondent to discuss Ms. Brannen's performance evaluation of Respondent. The evaluation was not good. In many categories, Respondent's work performance as state reports coordinator was found to be ineffective, and in other areas, Respondent was found to need improvement. Attached to the performance evaluation were 26 pages of detailed comments and documentation on each category evaluated, explaining the reasons for finding Respondent's performance ineffective or needing improvement. In sum, Ms. Brannen provided substantial performance-based justifications for each evaluation level given. Some of the basic performance problems trace back to the original concern regarding whether Ms. Ehlers had the skill set for this position. Although Ms. Ehlers plainly touted her skills and ability to carry out the responsibilities of state reports coordinator "better than anyone else," a review of the job description used to determine her qualifications shows that in some pretty obvious areas, her skills were lacking. As one example, the job description starts with the following statement under the heading "Knowledge, Skills and Abilities: Above average knowledge of PC applications such as MS Word and Excel." Ms. Ehlers did not have "above average knowledge" of these applications. She admitted as much in her meeting with Ms. Brannen in late August 2009, characterizing her own knowledge of both Word and Excel as only "Basic." She trained enough to pass a test to qualify for the job and believed that whether or not she retained the knowledge was not an issue. The January 2010 evaluation shows why above-average skills--beyond basic and certainly beyond "knew at one point but forgot"--were necessary. As just one example, one of several mistakes Respondent made in an FTE Audit Documentation report, turned in for distribution to executive staff, was described as follows: School Missing from FTE Totals. After adding a new school, Karin did not adjust the Excel table to include the school properly. Finding amounts for that school were not properly reflected in the findings totals, resulting in a misstatement of FTE finding amounts. In the evaluation categories of Personal Relationship (employee's tact, courtesy, self-control, patience and respect for others) and Acceptance of Constructive Criticism, Ms. Brannen's comments were as follows: There have been multiple instances where Karin has become upset, lost control, and left the job. We have recently established a mediation agreement that we hope will resolve this issue. When things go wrong, Karin has a tendency to try to assign blame, rather than focusing on what needs to be done to correct the problem. I have spoken to Karin about this. No one is in a position to evaluate the performance of any employee who is not a direct report. It is inappropriate, and unproductive. Karin is working on this and I have seen some improvement. Karin tends to become combative when she feels her performance is questioned. She has acknowledged that she does not take correction well, and we are working on that. I have noted improvement over the last two weeks. The record amply demonstrates the credibility and fairness of these statements. As will be pointed out below, the critiques echo similar statements made by every other supervisor Respondent worked for at the School Board. Unfortunately, the brief improvement noted in Respondent's behavior came to an abrupt halt with the issuance of this evaluation, which came with a recommendation by Ms. Brannen and Ms. Collesano that Ms. Ehlers be placed on the "notification, evaluation, assistance and time" (NEAT) process. The NEAT process is a performance improvement plan designed to provide greater assistance to employees who need help to succeed in their positions. For classified employees, such as Respondent, who are placed in the NEAT process, more times than not, the employee successfully completes the plan, and the result is that the employee is retained in the position. But termination is a possible outcome, if an employee does not successfully complete the NEAT process. Respondent could have accepted the critiques and dug in to learn or re-learn the skills needed for her new position. Instead, she fell back into a defensive, combative response mode, starting by refusing to sign the evaluation, even though the form makes clear that the employee's signature "does not necessarily indicate agreement." On the morning of February 4, 2010, Respondent finally signed her performance evaluation after her union representative advised her to sign it. Later that morning, after signing her negative performance evaluation, Respondent went to the clerk of the Circuit Court and filed a "Petition for Injunction for Protection Against Repeat Violence" against Ms. Brannen. The Circuit Court denied the petition that same day, finding that "the petition does not set forth facts which warrant the issuance of an injunction." The Circuit Court added the following note: "Injunctions for Protection are not intended to resolve work place disputes." The Hostile Work Environment Complaint The day after her injunction petition was denied, Respondent filed a Hostile Work Environment Complaint, supplemented on February 8, 2010, naming Ms. Brannen as the one who created the hostile environment. Mr. Lempe accepted Respondent's complaint immediately and took it very seriously. He requested that Mr. Jones and Mr. Sprinkle from the Human Resources department assist him with the investigation. Mr. Lempe chose to bring in the Human Resources staff, because they were outside of the IT department and had substantial experience in conducting investigations. Mr. Sprinkle interviewed Respondent twice, at Respondent's request, and he interviewed Ms. Brannen once. Mr. Sprinkle also interviewed 35 other individuals whom Respondent identified as having information regarding her claim of a hostile work environment. Mr. Sprinkle interviewed every District employee identified by Respondent and as many former District employees who agreed to be interviewed. The investigation was comprehensive and thorough.5 April 13, 2010, Weingarten Meeting While the Hostile Work Environment investigation was ongoing, Ms. Collesano proceeded with a Weingarten meeting to address Respondent's conduct through March 2010 that was contrary to the terms of the mediation agreement. After being rescheduled at Respondent's request, the meeting was held on April 13, 2010. Present at the meeting were Ms. Collesano; Respondent; Respondent's union representative, Dee White; and Ms. Fletcher to keep the minutes. During the meeting, Ms. Collesano shared with Respondent a series of emails that Respondent wrote. Instead of addressing the emails and responding to questions, Respondent became very agitated and kept veering off-topic to make accusations against others. Respondent yelled at Ms. Collesano, her department director. Respondent denies this, but every other person in the room, including Respondent's union representative, testified that Respondent yelled at Ms. Collesano. Their consistent testimony is credible; Respondent's denial of what everyone else in the room agreed happened is not credible. Twice during this meeting, Respondent was interrupted by her union representative to advise Respondent to stop, that Respondent was digging herself in a hole, and that Respondent was being very unprofessional. Respondent, however, did not stop. Instead, she accused Ms. Collesano of lying. Again, Respondent denies that she accused Ms. Collesano of lying. But Respondent did admit that she accused Ms. Collesano of "not being truthful" and that there was no difference between "not being truthful" and "lying." Once again, other witnesses in the room recalled quite clearly that Ms. Ehlers called Ms. Collesano a liar. The greater weight of credible evidence supports a finding that Ms. Ehlers did, in fact, call Ms. Collesano a liar, without any apparent basis at the April 13, 2010, Weingarten meeting. Respondent's verbal attack against her department director cannot be justified as legitimate or reasonable behavior for a subordinate. Respondent was insubordinate. Ultimately, Respondent's union representative stopped the meeting. Respondent was emotional and followed her union representative out of the building and into the parking lot. The union representative told Respondent to go back inside the building, go back to work, and not to follow her. April 15, 2010, Refusal to Meet Soon after the April 13 Weingarten meeting, Ms. Collesano reported to Mr. Lempe that she was growing increasingly concerned about her safety. Ms. Collesano also reported that others in the IT department also feared for their safety around Respondent. That report was ultimately confirmed to Mr. Lempe by several of Respondent's co-employees. Mr. Lempe elected to exercise a right available to him under the CBA to require Respondent to submit to a fitness-for- duty psychiatric evaluation before returning to work. A letter was prepared notifying Respondent of this requirement, and Mr. Lempe intended to meet with Respondent at the end of her work day on April 15, 2010, to deliver the letter to her. At approximately 4:15 p.m., on April 15, 2010, Mr. Lempe was on his way to the green awning building, less than two minutes away. Ms. Collesano met Mr. Jones of Human Resources in the lobby, and they waited for Respondent. As Respondent approached, Ms. Collesano asked her to stop to meet with her and Mr. Jones for just a few minutes. Respondent did not stop or break stride, but kept walking right past Ms. Collesano and Mr. Jones, saying that she had to leave to pick up her kids. Shortly after leaving the building, Respondent called Pam Newton, the receptionist who was in the lobby and who witnessed Respondent's exit. Respondent told Ms. Newton that the reason she did not stop was that Respondent thought she was about to be fired because she "blew up" and "lost it" at the Weingarten meeting two days earlier. Respondent told Ms. Newton that her union representative, Dee White, was mad at her, too, and thought Respondent's behavior could result in her getting fired. Respondent denies this telephone call. However, Ms. Newton's testimony was credible and corroborated by her written note of the incident shortly after it occurred. While Respondent testified that she had arranged to leave early at 4:15 p.m., to pick up her children, her conduct and her admission to Ms. Newton suggest a different reason for not stopping, even for a minute or two, for the brief meeting requested by her department director. According to Respondent's testimony, Mr. Jones and Ms. Collesano told her to come see them first thing the next morning, which would have been Friday, April 16, 2010. Respondent did not do so; she called in sick. It was not until Monday, April 19, 2010, that administration was able to deliver the letter to Respondent requiring an evaluation before returning to work. The next day, on April 20, 2010, Respondent filed two reports with law enforcement alleging that Ms. Brannen had committed two batteries on Respondent, one in October and one in November 2009. These same incidents were the basis for Respondent's prior petition for injunction against Ms. Brannen, which was denied. One allegation was that on October 23, 2009, Ms. Ehlers was moving boxes, and Ms. Brannen grabbed Ms. Ehlers' arm to stop her because she was putting the boxes in the wrong place. The other allegation was that on November 13, 2009, Ms. Ehlers was seated at her work station, and Ms. Brannen put her hands on Ms. Ehlers' shoulders and shook her while scolding her for writing something the wrong way. Respondent's explanation for not bringing up these allegations until five to six months after they occurred was that she did not realize they were batteries. No credible evidence was presented to establish that these incidents actually occurred, and Ms. Brannen denied them. There were no witnesses, even though both allegedly occurred at the workplace where others routinely were present. Outcome of Hostile Work Environment Complaint By letter dated April 26, 2010, Mr. Sprinkle transmitted to Mr. Lempe a big notebook organized with the information he had gathered in conducting the Hostile Work Environment Complaint investigation. Included were transcripts of Respondent's and Ms. Brannen's interviews, summaries of the 35 other interviews conducted, and additional material. Mr. Lempe reviewed in-depth the notebook of materials provided by Mr. Sprinkle. Mr. Lempe also followed up on issues identified in the materials, speaking again with several of the persons who had been interviewed to get more information. He also reviewed additional records, creating a notebook of his own. Mr. Lempe's conclusions on the Hostile Work Environment investigation were set forth in a memorandum dated May 6, 2010, and sent to Respondent. Mr. Lempe determined that there were two main themes evident from the investigation: first, that Ms. Brannen has high expectations of herself and those who work for her, is very precise and, generally, is a very intense manager; and second, that it was Respondent's behavior, not Ms. Brannen's behavior, that created an environment of fear and intimidation in the IT department, both with co-employees and with supervisors. Mr. Lempe concluded that a hostile work environment was shown to exist, but that contrary to Respondent's complaint, Respondent was the root cause of that environment, not Ms. Brannen. Mr. Lempe's conclusion was supported by the greater weight of the more credible evidence at the final hearing. As already noted, Respondent went out of her way to complain and make negative comments about Ms. Brannen to her co-workers and others. Her co-workers in the IT department, in particular, were subjected to interruptions during the workday and were bothered by this constant diatribe. Numerous employees testified to Respondent's bizarre behavior during the time she was in the state reports coordinator position. For instance, Respondent would enter a room, but not join a conversation. Instead, she would peer over the cubicles to eavesdrop on others' conversations. Respondent was famous for giving dirty looks to her co-workers--she would stare at them, scowl, glare, and smirk. Respondent also followed employees around, tracking them when they would leave their desks with no work-related reason for doing so. When employees sat outside on a break, Respondent stared at them through windows from inside the building. Outside the building, Respondent would drive her vehicle slowly by employees, staring at them to the point of making them feel uncomfortable. Perhaps one explanation for Respondent's stalking-type behavior was that she was looking for ammunition to complain about her co-workers. Respondent constantly complained about others allegedly engaging in various improprieties, including lying on their time cards, taking too-long lunches and breaks, and improperly talking about Respondent's Hostile Work Environment Complaint investigation. Respondent must have spent a tremendous amount of her work days focusing on the activities of her co-workers. Additional resources were spent by Ms. Collesano or Ms. Brannen, taking the time to promptly investigate each of Respondent's complaints about her co-workers. Then Respondent would complain because the investigated co-workers learned that Respondent had complained about them. In addition to Respondent's stalking-type behavior, Respondent disrupted the workplace by slamming doors and yelling frequently, and exhibiting displays of anger that were upsetting to other workers. She started petty fights over mundane things like pastries and recipes. More seriously, she made threatening comments that made her fellow co-workers uneasy. A number of these IT employees testified that they feared for their own safety because of Respondent's threats. Whether or not Respondent was actually dangerous or would ever carry out her threats, Respondent's threats were perceived to be serious and were very troubling to those hearing them. Respondent's threatening comments were also a matter of great concern to her own union and were among the reasons given for the union's recent termination of Respondent's membership. Dee White, Respondent's former union representative, testified that one of Respondent's co-workers and fellow union members called to express a concern that Respondent might become violent. The union president, Patricia Gardner, whom Respondent called to testify on her own behalf, identified three reasons standing behind the union's decision to terminate Respondent's membership. One reason was that in one of Respondent's many emails complaining about Ms. Brannen, Respondent falsely stated that Ms. Gardner had made negative comments to Respondent about Ms. Brannen. Ms. Gardner never made any such comments. A second reason was described as follows by Ms. Gardner: [T]he main thing that started it [discussion of terminating Respondent's membership] and was taken to my board where they discussed it and brought Ms. Ehlers in was her going to a representative at the Landings to pick up a T-shirt. And in the conversation, which was very one-sided, saying Barbara Brannen needs to die, which was very upsetting to her and upsetting to my board. Ms. Gardner explained that Respondent was called in to give her side of the story to the board. She denied saying to a union representative that Ms. Brannen needs to die, but the board believed she did say it. The board asked Ms. Gardner to speak to Respondent, and so the two of them had a discussion. Ms. Gardner described how she told Respondent to stop talking about Ms. Brannen: "Don't say those things. They're inappropriate. You can get in a lot of trouble for saying that sort of stuff. Just stop." Ms. Gardner described Ms. Ehler's response in which she said, "Oh, okay," she would stop. But shortly after that conversation, the April 13, 2010, Weingarten meeting, occurred. Respondent's behavior at that meeting was the final straw for the union, and Respondent's membership was terminated. A few witnesses testified in support of Respondent on the subject of whether they were aware of her threats or were afraid of her. A few male witnesses of not-so-small-stature testified that they were not "personally" fearful of Respondent. But one of these witnesses equivocated: Q: Have you ever had any reason to be fearful around Ms. Ehlers? A: Physically fearful? Q: In any way, really. A: Well, I guess we got to define fearful. I mean, afraid for my life or something? Q: Right, right. A: In that case, no. Q: Afraid any other way? A: Well, she's unpredictable. In addition, one female witness who had only known Respondent since arriving at the IT department in July 2009, testified that she did not understand why others disliked Respondent.6 This testimony was insufficient to detract from the more credible and substantial testimony that many others had a reasonable basis to be bothered and uncomfortable, at best, and fearful for their own safety, at worst, because of Respondent's behavior. Respondent attempted to prove, as in her Hostile Work Environment Complaint, that the real culprit was Ms. Brannen. Respondent presented the testimony of several witnesses, some long retired and some long moved away from the IT department and the green awning building, to attest to the difficulty of working for Ms. Brannen. As previously found, there is no doubt that Ms. Brannen can be difficult to work for if the employee does not measure up to her demanding high standards. There was some evidence that in the past, Ms. Brannen's management style may have been overly harsh at times. But the evidence also established that corrective steps were taken. Specifically, since Ms. Collesano became IT department director in August 2007, she has mentored Ms. Brannen. Ms. Collesano also sent Ms. Brannen to the Academy of Leadership Excellence for a program specifically designed to improve managerial skills. Since that time, there has been marked improvement in Ms. Brannen's management style, as attested to by those with knowledge, who maintain a current working relationship with Ms. Brannen (as opposed to those who retired or moved on long ago). The greater weight of the more credible evidence establishes that Ms. Brannen did not create a hostile work environment while Respondent was working under Ms. Brannen's direct supervision. Ms. Brannen created a demanding work environment where high standards were expected. Indeed, the mediation agreement between Respondent and Ms. Brannen, which was developed with the help of Mr. Berger, recognizes the appropriateness of Ms. Brannen's high expectations and confirms the reasonableness of her requiring accuracy in the highly detailed work she supervises. Respondent also claimed that Mr. Lempe's hostile work environment conclusion was improperly based on his review of court records, including numerous injunction petitions filed by Respondent or against Respondent, and court orders in those proceedings. Mr. Lempe testified that he did not rely on those filings for the truth of the matters asserted. The material that was unrelated to Respondent's unsuccessful filings against Ms. Brannen discussed above arguably could have been excluded from the record pursuant to Subsection 120.57(1)(d), Florida Statutes, but no objection on that basis was made. Instead, Respondent stipulated to their admission into evidence. Regardless, those documents do not add anything to the testimony and the competent substantial evidence of record and have not been used as the basis for any findings of fact herein. Context of Respondent's Work History As noted in recommending termination of Respondent's employment, the specific incidents on which the Superintendent based her recommendation all stemmed from Respondent's behavior and actions in 2009-2010. But the Superintendent also reasonably considered the recent events in the context of Respondent's work history with the School Board. Consideration of that history adds more credence and support to the concerns with Respondent's recent actions. The patterns of inappropriate behavior and serial insubordination have long been present; they have just been carried to the extreme, over the top, by recent events. Loretta Brustlin was Respondent's first supervisor. In 1996, Ms. Brustlin gave Respondent a negative performance evaluation, noting that Respondent "did not work well with employees" and was "very defensive and easily upset." Ms. Brustlin stated that "there have been a number of situations which have resulted in direct confrontation with other employees and administration." Respondent wrote a rebuttal to the evaluation, stating that she had been "verbally abused, intimidated, humiliated, and belittled." She claimed that "certain co-workers have harassed me and tried to make me as miserable as they can. They don't behave professionally and lack in common courtesy." She claimed that co-workers were "mean, nasty, and won't answer when I asked a work related question." She ended her rebuttal with this: With the turbulent work environment, certain co-workers hiding my listings, and trying to get me upset or in trouble, its [sic] not surprising that I have been defensive. I have been visibly shaken on many ocassions [sic] due to the treatment I have received. Respondent also filed complaints against Ms. Brustlin, including one complaint alleging that Ms. Brustlin had battered Respondent. Just as in Respondent's injunction petition and police reports against Ms. Brannon, Respondent claimed that Ms. Brustlin grabbed her by her shoulders and shook her; Ms. Brustlin denied doing so. Respondent also filed complaints in 2002 against her next supervisor, Brad Schuette. These complaints were filed after Mr. Schuette issued two consecutive Memoranda of Instruction in 2001 regarding Respondent's disrespectful, unprofessional, argumentative, and condescending behavior. One of Respondent's complaints claimed that Mr. Schuette discriminated on the basis of religion and sex. She accused Mr. Schuette of yelling and screaming at her and being unprofessional. In an appeal of the denial of that complaint, Respondent claimed that Mr. Schuette "lied to protect himself" and was "definitely guilty of harassment." She complained about his lack of skills as a manager, defensively stating that Respondent was "not a child." Mr. Schuette gave Respondent a negative performance evaluation in August 2002, in which he rated Respondent as "not effective" in areas such as cooperation, acceptance of constructive criticism, initiative, and quality of work. Once again, Respondent wrote a rebuttal, stating as follows: Since I first began my employment [in November 1991], it has been evident to me that there have been extreme personnel problems. On numerous occasions, I have been verbally abused, intimidated, humiliated, and belittled. I have been visibly shaken on many occasions due to the treatment I recieve [sic]. Now I have been harassed by you . . . I hear complaints daily about the administration in this department. . . . In contrast to this grim report of constant problems with colleagues and supervisors, when Respondent was showering Mr. Lempe with emails to complain about how horrible it was to work for Ms. Brannon, she painted a very different picture of her prior experiences at the School Board. On October 22, 2009, for example, she complained that "Barbara just came and lectured me . . . I have never been treated like this in any positon [sic] I have ever worked in. People have always worked as a team." Similarly, at the final hearing, Respondent testified that she has enjoyed most of her years with the School Board. Respondent testified that her best years working for the School Board were when she was supervised by Bob Darois--so good that she never filed a complaint against him. But by her own admission, Respondent hardly worked during those years: "[W]hat I want to say is for five years not only myself, but three other programmers sat there with next to nothing to do. We just fiddled [sic] our thumbs." Mr. Darois, who retired in June 2009, testified at the final hearing. He was very low-key and mild in demeanor. Yet, even Mr. Darois made negative comments in his mild way, in his 2008 evaluation of Respondent, which he confirmed at the final hearing. In 2008, he said that Respondent "[n]eeds to work on interpersonnal [sic] skills" and be "more tactful in dealing with peers." He noted that "[w]e must all work together and be part of a team." At hearing, Mr. Darois explained that he made these comments because Respondent had "issues" with other programmers. Mr. Darois also commented in the 2008 evaluation that Respondent "should be more open-minded regarding constructive criticism." At hearing, he explained that Respondent would react to criticism by comparing herself to others: "You know, so and so didn't do this; why should I?" Respondent's most recent experience with a new authority figure showed a continuation of her behavior patterns. Even though Respondent was initially pleased with Mr. Lempe's attention to her complaints, Respondent ultimately complained about Mr. Lempe, too, right after receiving his determination on the Hostile Work Environment Complaint investigation. Respondent sent an email to the Superintendent and others claiming that Mr. Lempe had "harassed and intimidated" Emily Gilmore and that he had committed a felony by unlawfully imprisoning Ms. Gilmore. Respondent made this claim even though she was not present and did not witness any such conduct, and Ms. Gilmore never stated that Mr. Lempe unlawfully imprisoned her or committed a felony.7 Considering Respondent's work history as a whole, the greater weight of credible evidence establishes that Respondent has never tolerated supervisory authority well. Under the guise of demanding respect and professionalism, Respondent was really demanding that she be left alone to perform her job as she saw fit, without questioning methods or results and without criticism. Whenever a supervisor has corrected or criticized Respondent, that supervisor has quickly become the subject of one of Respondent's many complaints. Respondent has a pattern of being derisive and disrespectful to her supervisors and blaming them for her own insubordination. Respondent has a consistent pattern of blaming her own shortcomings on others and has been repeatedly characterized, with good cause, as very defensive and easily upset over her years employed at the School Board. Her behavior is volatile and unstable and is highly disruptive to the work place. With a few isolated exceptions, she does not get along with others and is not a team player. Indeed, she goes out of her way to make the work lives of many of her co-workers miserable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating Respondent, Karin Ehlers's, employment. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 10th day of November, 2010.
The Issue The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact The petition herein was filed by the Petitioner with PERC on February 11, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated May 3, 1976. (Hearing Officer's Exhibit 2). The City of Boca Raton is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record */ , Page 6). The Petitioner is an employee organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6, 7). The Petitioner has requested recognition as the bargaining agent of employees set out in the petition, and the Public Employer has denied the request. (Stipulation, TR 7). There is no contractual bar to holding an election in this case, and there is no pertinent collective bargaining history which affects the issues in this case. (Stipulation, TR 7, 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer contends that the unit described in the petition is inappropriate, and that the Petitioner has made no appropriate showing of interest with respect to any appropriate collective bargaining unit. The Public Employer's Fire Department is divided into five divisions. The employees in the proposed collective bargaining unit all work under the Administrative Division, and are supervised by an assistant chief. The other divisions are the Training Division, Operations Division, Staff and Line Support Division, and Fire Prevention Division. The Public Employer operates four fire stations. Station No. One is the Department's headquarters. Fire fighters and emergency medical personnel are housed at headquarters as are all communications personnel, including the persons in the proposed collective bargaining unit. None of the persons in the proposed unit are stationed at the Public Employer's other fire stations. Dispatchers and Alarm Operators are supervised either by the Assistant Chief in charge of the Administrative Division, or by the company officer in- charge of the shift at the headquarters station. Dispatchers are not certified fire fighters, and they do not perform the duties of certified fire fighters. Fire fighters work what is called a twenty-four-hour-on, forty-eight-hour-off shift. Dispatchers work an eight-hour shift which revolves so that one or more dispatchers are continuously on duty. Dispatchers and fire fighters have a different pension plan, and different employee benefits. Fire fighters make a larger contribution to theirs pension plan than do dispatchers, and are covered by their plan from the first day of employment. Dispatchers are not covered until after the passage of six months. The City provides hazardous duty insurance for fire fighters, but not for dispatchers. Dispatchers have a six- months probationary period. Fire fighters have a one-year probationary period. Although dispatchers do not perform the work of fire fighters, fire fighters are trained to serve as dispatchers, and do frequently perform the dispatchers' functions. The dispatchers and fire fighters work closely together. There are occasional social functions attended by fire fighters and dispatchers which no other city employees attend. Dispatchers receive the same basic employment benefits that are received by clerical employees of the Public Employer. They have the same pension plan, vacation and sick leave policies, and they serve the same probationary period. Dispatchers and clerical employees receive similar salaries. The only promotions available to dispatchers within the City of Boca Raton would be to clerical positions with a higher pay grade. There are no promotions available within the Fire Department. Dispatchers do not perform typing, filing, and other general clerical duties. Their function is not, however, unique to the City. The Police Department also employs dispatchers, and police and fire dispatchers have the same job description. (Public Employer's Exhibit 7). The Public Employer is presently engaged in collective bargaining with three employee organizations representing three certified bargaining units. There is a unit of "blue collar" employees, a unit of sworn police officers, and a unit of certified fire fighters. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James C. Crossland, Esquire Muller & Mintz, P. A. Suite 600, One Hundred Biscayne Blvd. Miami, Florida 33132 Richard F. Krooss, President Fire Fighters of Boca Raton, No. 1560 Post Office Box 565 Boca Raton, Florida 33432 Curtis L. Mack, Chairman Public Employees Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32304 =================================================================
