The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.
Findings Of Fact Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]). On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment. DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2007.
The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent was certified by the Commission on January 22, 1981, and was issued certificate number 02-026742. At all times material to the allegations of this case, Respondent has been employed as a law enforcement officer with the City of Pompano Beach Police Department. Cocaine is a schedule II controlled substance pursuant to Section 893.03, Florida Statutes. Pursuant to Section 893.13, Florida Statutes, possession of cocaine is a felony. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug and alcohol testing for all police officers employed by the City of Pompano Beach Police Department. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station. Ms. Bobkier, a WCMC employee with four and a half years experience, was responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as DO482663-5. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992. The courier presumably took the samples to NHL where they were given assension numbers by a NHL employee. Neither the courier nor the "assension" employee testified at the hearing. The assension number assigned to sample DO482663-5 was 3303217-5. According to Dr. Donald R. Stalons, the director of NHL, testing on assension sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing. According to the test results for assension sample no. 3303217-5, such sample was positive for cocaine metabolite. The "assension number" referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint. DONE AND RECOMMENDED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 12, and 21 are accepted. Paragraphs 13 through 20 are rejected to the extent that they conclude the sample was Respondent's. The Petitioner failed to prove the sample was Respondent's as his sample was not transported to the testing center until approximately 7:15 p.m. on September 24, 1992. The sample tested by NHL purported to be Respondent's sample was tested at 2:45 p.m. that same day. This would be physically impossible. To the extent that the paragraphs correctly outline the testing procedures and results at NHL, they could be accepted but are irrelevant as the sample could not have been Respondent's. Paragraph 22 is rejected as it is not supported by the weight of credible evidence. Paragraphs 23 through 32 are rejected as irrelevant and outside the scope of the administrative complaint. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted in a form which can be addressed by either accepting or rejecting a statement of fact. Otherwise, Respondent's proposed findings of fact are rejected as argument. COPIES FURNISHED: Richard E. Lober Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 W. George Allen One River Plaza, Suite 701 305 S. Andrews Avenue P.O. Box 14738 Fort Lauderdale, Florida 33302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent held a certificate as a law enforcement officer from June 15, 1979 through October 1, 1983. This certificate is currently inactive. At all times relevant herein, Respondent was employed in a law enforcement capacity with the Pompano Beach Police Department. On October 2, 1981, Respondent, who is black, filed a memo with the Chief of the Pompano Beach Police Department, alleging harassment of black officers and mistreatment of prisoners by police supervisors. Respondent also described an alleged beating by police in an incident which occurred on June 8, 1981. The June 8 incident came to Respondent's attention weeks later in a casual conversation with a Mr. Phillip Robinson who had witnessed the incident and described it to Respondent. Respondent, in turn, reviewed the files and found no "use of force" report which led him to conclude that the incident had been covered-up. At Respondent's urging, Robinson came forward and gave his statement to the Pompano Beach Police Department regarding this incident. An investigation of this incident and Respondent's other allegations was conducted by the department. Their findings and conclusions differed substantially from those of Respondent. Contrary to Respondent's contention, a use of force report had been filed. Also, Robinson did not actually see the police strike the detainee on the head nor did he observe six blows as related by Respondent. It must be recognized that Respondent was urging an investigation and did not intentionally misrepresent facts which he himself sought to have determined through such investigation. However, Respondent's accusations of police brutality, official cover up, and racial harassment were at best premature, where, as with the June 8 incident, he was neither a witness nor the designated investigator. The second incident on which evidence was presented arose when Respondent reported for reassignment as a "teleserve officer" on December 27, 1982. Respondent had been contacted at home and verbally told to report to Captain Sullivan at 11:00 a.m. for the new assignment. Sullivan observed Respondent outside his office shortly after 11:00 a.m. and directed him to come into the office to discuss his new duties. Respondent refused to come in stating that he had to go to the bathroom. Shortly thereafter he did return and enter Sullivans' office. An argument which involved shouting heard by other employees ensued, and Sullivan thereupon suspended Respondent and temporarily relieved him of duties. Respondent was in a guarded state of mind when he reported to Captain Sullivan. He had previously been under psychological evaluation on order of the department and had only three days previously filed several memos accusing police officials of racial harassment and requesting an investigation. Without Sullivan's knowledge, Respondent recorded that portion of the conversation which took place inside Sullivan's office. A transcript of this conversation revealed that Respondent was prepared to accept his new assignment, but believed that it was a desk job created to harass him. Respondent made several accusations of harassment which apparently angered Sullivan, resulting in a loud and angry exchange. Respondent established through the testimony of the former city personnel director and coworkers at the Pompano Beach Police Department that he was targeted for firing by police supervisors who wanted to get rid of him. This testimony also established that Respondent was a capable patrolman who had been commended for outstanding police work by both the department and members of the public.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in its Administrative Complaint. DONE and ENTERED this 26th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 26th day of November, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Charles T. Whitelock, Esquire Department of Law WHITELOCK and MOLDOF Enforcement 1311 Southeast Second Avenue Post Office Box 1489 Ft. Lauderdale, Florida 33316 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 12489 Tallahassee, Florida 32302
Findings Of Fact Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984. He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980. The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about 15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent. During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch. At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal. In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class. Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended. Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting. Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal. One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students. Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students. Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: 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 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether Respondent, Flagler County School District (“School District”), subjected Petitioner to discrimination on the basis of her disability, in violation of section 760.10, Florida Statutes,1 and/or whether 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School District is an employer as that term is defined in section 760.02(7). Ms. Lancaster, born on April 12, 1980, began working as a bookkeeper for the School District’s Transportation Department on January 13, 2011. She resigned from her position on November 7, 2019. This case is complicated by the fact that only Petitioner’s allegation of discrimination on the basis of a disability is at issue. The FCHR separately investigated Petitioner’s earlier complaint regarding sexual harassment and discrimination on the basis of sex, as well as retaliation for complaining about the harassment. The FCHR was unable to make a reasonable cause determination within the allotted 180 days. The FCHR notified Petitioner of her litigation options as to the sex discrimination/sexual harassment complaint. Petitioner allowed the 35-day window to file for a DOAH proceeding to lapse, but as of the date of this Recommended Order still has time to file a complaint in the proper court. At the hearing in this case, a great deal of testimony was provided as to the particulars of the sexual harassment claim. Petitioner presents the sexual harassment claim and disability claim as intertwined issues, arguing that her mental/emotional disability was triggered by the sexual assault and exacerbated by the School District’s response. Therefore, findings of fact on the sexual harassment claim are necessary to reach the disability claim. However, any relief to be provided to Petitioner in this proceeding is limited to her disability and retaliation claims. Ms. Lancaster’s difficulties at work commenced when she was accosted sexually by a fellow employee, Emilio Viera, in May 2018. Ms. Lancaster testified that Mr. Viera, who was about 75 years old at the time, entered her office, closed the door, and forced himself on her. He attempted to kiss her but she turned away. Mr. Viera proceeded to kiss her neck and grope her breasts and buttocks. Ms. Lancaster was stunned by the attack but eventually managed to push Mr. Viera away and leave the office. Ms. Lancaster testified that on the following day, Mr. Viera chased her down in his car as they were each driving away from work. Ms. Lancaster stated that Mr. Viera sped past her then cut her off, forcing her to slam on her brakes. She nearly t-boned Mr. Viera’s vehicle. Once Ms. Lancaster stopped her car, Mr. Viera got out of his car and pounded on the window of her car. He was attempting to give something to Ms. Lancaster, who at length managed to maneuver her car around Mr. Viera’s and get away. Ms. Lancaster told her husband what had happened with Mr. Viera but did not report these incidents to anyone at the School District at the time they happened. Ms. Lancaster reported the incident to the Flagler County Sheriff’s Office on August 14, 2019, more than a year after it happened. The Sheriff’s Office Incident Report states that Ms. Lancaster reported that, shortly after these incidents, Transportation Department employees were relocated while a mold problem in their unit was addressed. She and Mr. Viera worked at separate locations during this time. At the hearing, Ms. Lancaster was not questioned as to the reason why she and Mr. Viera were separated at work. It is undisputed that Mr. Viera left her alone during the separation. In May 2019, the employees were moved back into their home unit. Ms. Lancaster stated that Mr. Viera began coming around again. He noticed a tattoo on her back and made suggestive comments about it. He followed her into her office. Ms. Lancaster testified that at this time she reached out to Andy West, the Director of the Transportation Department. She told him that Mr. Viera was making her uncomfortable. Mr. West assured her that he would take care of the situation. Mr. West told Ms. Lancaster that Mr. Viera would be instructed to come to Mr. West if he had any business in the office and to leave Ms. Lancaster alone.2 Ms. Lancaster testified that either Mr. West did not follow through on his assurances or Mr. Viera chose to ignore Mr. West’s instruction. On July 16, 2019, Mr. Viera came into Ms. Lancaster’s office when no one else was around. Ms. Lancaster did not describe what Mr. Viera did or said while in her office, aside from winking at her, but she testified that his presence caused her to enter a “trauma state.” Ms. Lancaster testified that, after her troubles with Mr. Viera began, she had taken to carrying a pocket knife for protection. When Mr. Viera left her office on July 16, 2019, Ms. Lancaster turned the knife on herself. She cut her wrists. She then went to a coworker, Geri Drayton, and asked for help. Ms. Drayton called the police. Ms. Lancaster was involuntarily detained under the Baker Act and placed in the Palm Point Behavioral Health hospital. She was hospitalized until July 22, 2019. 2 Counsel for the School District attempted to cast doubt on Ms. Lancaster’s testimony by noting that there were no documents to support her story that she went to Mr. West for help. Counsel also pointedly asked Ms. Lancaster why she did not call Mr. West as a witness to support her testimony. However, Ms. Lancaster offered credible testimony, under oath, that she went to Mr. West, told him what was going on with Mr. Viera, and requested Mr. West’s protection. If the School District wished to dispute Ms. Lancaster’s credible testimony, it could have called Mr. West as its own witness. The School District chose not to do so. Ms. Lancaster’s testimony on this point is credited. On July 24, 2019, Ms. Lancaster’s physician, Leslie Williams, wrote the following letter, addressed “To Whom It May Concern” and sent to the School District: Mrs. Lancaster is a patient of mine who has experienced [an] acute episode of chronic condition, requiring hospitalization from 7/16/19 – 7/22/19. She is taking medication as prescribed but is not yet cleared for return to work. She will be evaluated by a specialist on 8/1/19 and further decision regarding return to work will be determine [sic]. Please excuse patient from work until cleared. The letter did not further specify Ms. Lancaster’s “chronic condition.” In response to the letter, the School District placed Ms. Lancaster on leave pursuant to the Family and Medical Leave Act. Ms. Lancaster testified that on July 25, 2019, she met with Mr. West and Ben Osypian, who at that time was the Director of Human Resources (“HR”) for the School District. The ostensible subject of the meeting was Ms. Lancaster’s return to work. Mr. Osypian advised Ms. Lancaster to fill out a complaint form about the incidents that led to her hospitalization. Ms. Lancaster submitted a School District complaint form on August 13, 2019. She wrote that her complaint was “bullying, sexual harassment, and hostile work environment” that “has led to me unable [sic] to return to work at moment [sic] and has caused severe depression.” In an email dated August 14, 2019, Mr. Osypian advised Ms. Lancaster that her complaint needed to be more specific, including the names of the persons about whom she was complaining and the dates, times, and details of what happened. Ms. Lancaster responded that she was not comfortable putting the details on paper and would provide the details at an in-person meeting with Mr. Osypian. Ms. Lancaster testified that Mr. Osypian never responded. After she did not hear back from Mr. Osypian, Ms. Lancaster met with her union representative, Lakisha Ayers-White, a vice president of the Flagler Educational Support Personnel Association (“FESPA”). On August 16, 2019, Ms. Ayers-White wrote the following letter on behalf of Ms. Lancaster to Earl Johnson, a School District administrator: I am writing to you on behalf of Mrs. Laura Lancaster, a Flagler County employee and FESPA member. On June 27, 2019, Mrs. Lancaster notified Mr. West, Director of Transportation, that a problem had developed within her worksite. The problem was that information vital to processing payroll was not being submitted to her. The established procedure was for coworkers to submit all necessary paperwork every Monday by 9:30 a.m. On July 26, 2019, Brun Hudson, President of FESPA, and myself were meeting with Mr. West regarding other issues. At the end of that meeting we asked Mr. West what action he would take to rectify the problems Mrs. Lancaster had brought to his attention. I shared copies of several emails requesting assistance to resolve the issues. Mr. West responded that he would let us know what he would do. To date, we have not heard from Mr. West what action he plans to take to rectify the situation. The hostility in the office has persisted and escalated to the point where Mrs. Lancaster was forced to take leave from work. Mrs. Lancaster is currently receiving assistance to better handle stress and trauma. Additionally, Mrs. Lancaster has sought an injunction to protect her from coworker, Emilio Viera. She had informed Mr. West of an incident that previously occurred at work involving Mr. Viera and a more recent interaction that have left Mrs. Lancaster feeling unsafe. The leadership of FESPA feels that we have given Mr. West ample time to rectify the procedural problems that are impacting Mrs. Lancaster’s ability to complete her work in a timely and efficient manner. A safe and healthy environment is essential not only to Mrs. Lancaster’s wellbeing, but also to her ability to perform her duties as an employee of Flagler County Schools. Mrs. Lancaster desires to return to work as soon as possible but cannot return if the problems she has identified persist. Mrs. Lancaster filed a complaint on August 13, 2019. She received a response from Mr. Osypian asking for more information. She is happy to comply with his request but replied to him that she would prefer to supply the details at a face-to-face meeting. I am requesting to schedule a meeting to find an appropriate resolution and return Mrs. Lancaster to work. Please contact me at your earliest convenience to schedule a date and time for us to meet and resolve these issues. Ms. Ayers-White’s letter points to a discrepancy in Ms. Lancaster’s narrative of events. In her testimony, Ms. Lancaster exclusively focused on Mr. Viera as the source of her distress at work and cause of her hospitalization. In fact, Ms. Lancaster was also experiencing some sort of conflict with other employees in the Transportation Department involving untimely submission of payroll information. Ms. Lancaster did not testify as to the specifics of this conflict, aside from an allegation that these employees were bullying her. The documentary evidence sheds no more light than that provided by Ms. Ayers-White’s letter. However, it is notable that Ms. Ayers-White’s letter attributes Ms. Lancaster’s absence from work and need for mental health counseling primarily to this payroll-related conflict, not to the incidents with Mr. Viera. Ms. Ayers-White testified that she visited Ms. Lancaster in the hospital and that Ms. Lancaster made it clear that Mr. Viera was the cause of her hospitalization. She was not questioned as to the apparent contradiction between her testimony and the August 16, 2019, letter. Ms. Lancaster testified that she had no further response from the School District before August 22, 2019, when the Circuit Court in Flagler County entered a Final Judgment of Injunction for Protection Against Stalking against Mr. Viera. The injunction prohibited Mr. Viera from coming within 500 feet of Ms. Lancaster’s residence or workplace. The injunction allowed Mr. Viera to be present outside of the work building to the extent necessary to perform his own duties as a school bus aide, but it forbade him from contact with Ms. Lancaster. Ms. Lancaster testified that she agreed to the terms of the injunction at the court hearing, which Mr. Viera also attended. It is undisputed that Mr. Viera had no further contact with Ms. Lancaster after the injunction was issued. On August 27, 2019, a meeting was convened to discuss the terms of Ms. Lancaster’s return to work. Present at the meeting were Ms. Lancaster and her husband, Julian Lancaster; Mr. Johnson; Ms. Ayers-White; School District General Counsel Kristy Gavin; and Tammy Whittaker, another School District employee. It was agreed by all present at the meeting, including Ms. Lancaster and her union representative, that the School District would move Ms. Lancaster away from the main building to the Transportation Department’s satellite location at Matanzas High School, to protect her from contact with Mr. Viera and the employees she had accused of bullying her. At the time of the meeting, Mr. Viera was out of work indefinitely for medical reasons. Both of the Lancasters testified that the tone of the meeting was that the School District had accumulated evidence sufficient to ensure Mr. Viera would not be a problem when he returned. They understood that Ms. Lancaster’s assignment to the Matanzas office would be temporary, until Mr. Viera returned to work and the School District could make a final decision as to his employment. Ms. Gavin testified that there was no discussion as to whether the assignment to Matanzas was temporary. Ms. Gavin stated that the move to Matanzas had more to do with the bullying coworkers than with Mr. Viera, who was subject to an injunction to stay away from Ms. Lancaster. Ms. Gavin testified that Ms. Lancaster said that the coworkers were yelling at her and trying to sabotage her work. The conversation was about making Ms. Lancaster feel comfortable while she and her coworkers worked through their issues. The Matanzas assignment was temporary “until [Ms. Lancaster] had a comfort level of returning to be with [her] coworkers.” Ms. Gavin testified that Ms. Lancaster was asked if she would be able to perform her job duties from the Matanzas location and what could be done to facilitate her work. Ms. Lancaster assured the group that she could do her job from Matanzas. The School District established new timelines for the submission of payroll items to Ms. Lancaster to ensure that she could do her work in a timely manner. Ms. Gavin testified that most of the discussion at the August 27 meeting was an airing of Ms. Lancaster’s concerns about her coworkers. Mr. Viera was discussed only briefly. Ms. Lancaster told the group that she had a physician’s appointment on September 3, 2019, and believed that she would be released to return to work at that time. Ms. Gavin testified that in all of her discussions with Ms. Lancaster, nothing about a disability ever came up. Ms. Gavin stated that the School District provided Ms. Lancaster with information about its Employee Assistance Program (“EAP”) and was aware that she availed herself of EAP counseling services, but was not made aware of any specific disability claimed by Ms. Lancaster. Due to an impending hurricane, Ms. Lancaster’s physician appointment was moved to September 9, 2019. On that date, Ms. Lancaster’s examining nurse practitioner, Irene Talarico, wrote that Ms. Lancaster “may return to work effective today with no restrictions.” On September 13, 2019, Mr. Viera returned to work. On September 18, 2019, Ms. Lancaster sent an email to Ms. Gavin and Mr. Johnson asking whether Mr. Viera’s return meant that her assignment to Matanzas was permanent. On October 1, 2019, Ms. Gavin responded, “No, as we discussed Mr. Viera will be reminded of the injunction that is in place and that he is not to go into the building and/or have any direct communication with you.” In connection with this email exchange, Ms. Gavin testified that she was involved in this process only because the School District was trying to fill the position of Director of HR. Mr. Osypian had left the position and the new Director, Jewel Johnson, was just coming on to the job. Ms. Gavin was attempting to transition all HR-related issues to Ms. Johnson at the time Ms. Lancaster inquired about the import of Mr. Viera’s return. About an hour after receiving Ms. Gavin’s response, Ms. Lancaster replied as follows: I am sorry I am really confused. The last discussion we had about this situation and Emilio Viera is that I would come up to [Matanzas] temporarily until he return [sic] from leave so HR could have a formal meeting with him. I am still waiting to hear what that outcome is as I have not got one. I would like to know what the district is doing in regards to Emilio Viera actions [sic] towards me that happen at work. The injunction was something I had to file to protect myself to make sure this man didn’t hurt me again not only at work but outside of work. Please let me know. Three days later, on October 4, 2019, Ms. Gavin responded, “I have spoken to HR regarding this and they should be getting back with you regarding this matter.” Ms. Gavin testified that at this time, Ms. Johnson was trying to finalize the investigation into the matter between Mr. Viera and Ms. Lancaster. On October 7, 2019, Ms. Johnson sent the following email to Ms. Lancaster: Please excuse my delayed response to your written statement. Dr. Johnson did submit those to my office for follow up on the day of the Transportation Department Meeting. I am new to the details of your case; would you by chance be able to provide me with the names of witnesses to any of the episodes outlined in your statement? Email me back or call my office with that information. I know you currently have a temporary “safety- type” plan. Once the final outcome is made I will need to speak with you about next steps and transition options. I can come to your location to make it easier if you prefer. I’ll be back in touch with that date and please let me know if there are any additional witnesses that you can provide. This email highlights a complaint Ms. Lancaster made about the School District’s response to her complaint about Mr. Viera. Ms. Johnson appeared to be starting her inquiry from scratch in October, despite the fact that the complaint was submitted on August 13 and a meeting had been convened on August 27 that gave Ms. Lancaster the impression that an investigation of Mr. Viera was underway. Ms. Lancaster also pointed to the fact that on September 19, 2019, Mr. West had contacted her and asked for a written statement. She asked him what had happened to the statement she had already submitted. Mr. West answered that he did not have a statement. Ms. Lancaster testified that on October 18, 2019, Mr. West came into her office with a big smile on his face and told her that Mr. Viera would be allowed to keep his job. She was very upset and asked for details about the investigation and how the School District came to that decision. In a letter to Ms. Lancaster dated October 19, 2019, Ms. Johnson provided the School District’s response to Ms. Lancaster’s complaint: This is in response to the formal Complaint Form you submitted on August 13, 2019 concerning: Alleged bullying. Sexual harassment allegations. Hostile work environment. The following outlines the District’s response to the issues listed above: Alleged bullying. The District has conducted several individual meetings with transportation staff members to address the issues related to bullying and/or unprofessional behavior within the office. In addition, on September 24, 2019 a group workshop to address staff concerns of professionalism (or lack thereof) as well as address standard operating procedures to perform various work assignments was held with the entire office staff. As a result, the SOPs were updated and new processes put in place to ensure that all team members have access and receive the information required to perform their job, as well as working cooperatively with one another. Electronic drop boxes were established to ensure this happens. Sexual harassment allegations. The one year old allegation of sexual harassment was investigated and while the claim for sexual harassment did not meet the definition required for a finding of sexual harassment, the alleged actions were found to be inappropriate workplace behaviors. Thus, he was issued consequences that follow progressive discipline and given verbal and written directives to cease all contact with you. Hostile work environment. It is my understanding that, while Mr. Viera remains in the employ of the School District you would prefer to be permitted to work at a different location than the main transportation office, thereby affording you the ability to know you will not come into contact with him. To this end, to maintain a healthy and safe work environment for you the Matanzas High School location may remain your worksite. Per your request information for our Employee Assistance Program (EAP) is attached. Two of the guiding principles of Flagler County Schools are trust and respect for all and a commitment to individual needs. The complaint process, and all of its components, helps to ensure that our employees have this opportunity. If you have any questions or continued concerns regarding this matter do not hesitate to contact my office. The School District’s Policy Manual Rule 662 defines “sexual harassment” as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual’s education). submission to or rejection of such conduct by an individual is used as the basis for an employment or employment decisions [sic] affecting that individual; or such conduct substantially interferes with an employee’s work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one’s employment. Ms. Lancaster was astounded that the School District’s conclusion that Mr. Viera’s conduct did not meet its definition of “sexual harassment.” Mr. Viera had admitted to the acts alleged by Ms. Lancaster, his only defense being that he believed that he was responding to her “signals.” Ms. Lancaster’s confusion was compounded when she learned of the contents of the following disciplinary letter that Ms. Johnson sent to Mr. Viera on October 17, 2019: This correspondence serves as written reprimand for your inappropriate actions in the workplace. During our investigation and from your own admittance intimate actions (hugging, kissing, touching) took place in your work station with another Flagler County School employee on or about May 10, 2018. Such behavior violates School Board Rule 662(3) which defines inappropriate touching in the definition of sexual harassment. It is the expectation of the District to maintain safe, productive environments where all employees can serve the needs of our students. Any further actions of this nature may result in further disciplinary action up to and including termination. Should you have any questions or require any assistance do not hesitate to contact me or your Director, Andy West. The School District provided no explanation for the contradictory letters sent to Mr. Viera and then two days later to Ms. Lancaster, both written by the School District’s Director of HR. Ms. Lancaster questioned not just the apparent duplicity of the letters but the School District’s settling on the weak response of a reprimand for Mr. Viera’s actions. At the hearing, Ms. Gavin attempted to rationalize the School District’s actions. She first argued that the aspects of Ms. Lancaster’s complaint regarding the unwanted kissing and touching by Mr. Viera in 2018 were made outside the 60-day window provided by Policy Manual Rule 649 for complaints involving harassment or discrimination. Ms. Gavin stated that the only incidents within the allowable scope of rule 649 were Mr. Viera’s 2019 acts of commenting on Ms. Lancaster’s tattoo and entering her office prior to her cutting her wrists, hence the relatively mild disciplinary action. Ms. Gavin’s explanation is not satisfactory because it fails to explain why the reprimand letter to Mr. Viera expressly mentions the acts he committed in 2018, “hugging, kissing, touching,” and does not mention the 2019 acts. Under Ms. Gavin’s reading of rule 649, the 2018 acts should have been off limits for disciplinary action against Mr. Viera. However, they were considered and apparently formed the basis for the action taken by the School District. Second, Ms. Gavin testified that the School District’s collective bargaining agreement states that “if it goes beyond 18 months it cannot be considered as a part of the disciplinary process because it’s too old and it’s deemed they’re given a clean slate.” The “18 months” statement is related to Ms. Gavin’s insistence that the incidents of kissing and groping occurred in 2017, not 2018. Ms. Gavin based this testimony on her recollection that the mold remediation project in the Transportation Department was completed in November 2017. The Sheriff’s Office Incident Report stated that, after the kissing and groping incident, Ms. Lancaster and Mr. Viera were separated at work due to the mold problem. The Sheriff’s Office Incident Report is hearsay that was not confirmed at hearing by Ms. Lancaster’s sworn testimony. When Ms. Lancaster made her report to the Sheriff’s Office on August 14, 2019, she was less than a month removed from cutting her own wrists and being involuntarily committed under the Baker Act. She could have been mistaken as to the reason for the separation. However, the credible documentary evidence and Ms. Lancaster’s testimony all place the date of the initial incidents with Mr. Viera in May 2018. Ms. Gavin’s seizing on the detail of the mold remediation to excuse the School District’s disciplinary slap on the wrist to Mr. Viera cannot be credited. It is not only contrary to the evidence, it lacks internal logic. By Ms. Gavin’s own testimony, incidents more than 18 months old cannot be considered in the disciplinary process. However, Ms. Johnson’s disciplinary letter to Mr. Viera references only these supposedly stale incidents as grounds for the reprimand. Even on its own terms, Ms. Gavin’s argument fails. Finally, Ms. Gavin noted that, even if Ms. Lancaster had timely filed her complaint against Mr. Viera, the School District’s progressive discipline policy would in all likelihood have led to his referral for counseling and possibly a suspension without pay. She added that if the School District had recommended termination, the union would have filed a grievance protesting that the collective bargaining agreement was not being followed. This explanation is also unsatisfactory. Notwithstanding the progressive discipline policy, Policy Manual Rule 662 prohibiting sexual harassment provides that a substantiated charge against an employee may result in suspension or termination. The union may or may not have grieved the decision, and may or may not have succeeded in the grievance proceeding, but the School District had ample options under its rules to dismiss Mr. Viera. Instead, however, the School District decided that Mr. Viera’s admitted sexual assault did not merit discipline more severe than a reprimand. Ms. Gavin’s effort to hide this decision behind the cloak of progressive discipline and/or trepidation about a union grievance is not credible or worthy of merit. Having found Ms. Gavin’s explanations implausible, the undersigned is constrained to observe that the purpose of this proceeding is not to second- guess the School District’s decision as to Mr. Viera’s discipline. However, the School District’s contradictory statements in the letters to Ms. Lancaster and Mr. Viera, coupled with the mere reprimand for what Ms. Lancaster believed to merit much more severe discipline, had a demonstrable impact on Ms. Lancaster and partly led to her resignation. Thus, some discussion as to the School District’s explanation for its actions is merited. Ms. Lancaster testified that after receiving the October 19, 2019, letter from Ms. Johnson, her feelings of isolation and depression deepened. She felt herself trapped alone at the Matanzas office, separated from her colleagues in the Transportation Department. Now that Mr. Viera was back at work and still assigned to the main office, she believed her assignment to the Matanzas office would be permanent. She was unable to attend department meetings and events. The Transportation Department held a cookout to which she was not invited. Ms. Lancaster could not understand why the School District did not reassign Mr. Viera so that she could return to work with her colleagues. She felt that she was being punished for filing a complaint. Further, Ms. Lancaster felt that she was unable to adequately perform her job from the Matanzas office. She could not be in direct contact with department employees, who found it more difficult to submit their paperwork to her in a timely fashion. Ms. Lancaster was receiving documents late, which in turn caused her to turn in the payroll data late. She stated that she was getting complaints from fellow employees. Ms. Lancaster testified that it made no sense that the only “accommodation” that the School District was willing to make for her mental disability was to isolate her at Matanzas, her only other choice being to return to the place where her attacker worked and where her only protection from him was a piece of paper, i.e., the injunction. Ms. Lancaster produced a School District Official Grievance Form (“Official Grievance Form”) that she signed and dated on October 25, 2019. On the form, she stated that she wished to grieve the result of the investigation memorialized in Ms. Johnson’s letter of October 19, 2019. As to the “specific relief sought,” Ms. Lancaster wrote: Mrs. Lancaster wants to return to her office in Transportation confident that she will be safe; To be an active member of the Transportation Department, free to attend department meetings and events; 3) Desires to rectify the perception and her sense of being punished for filing the complaint. The form was signed only by Ms. Lancaster. The space provided for the signature of a School District administrator was blank. The School District denied ever receiving this Official Grievance Form. Ms. Lancaster testified that the filing of the form led to a meeting between her, Florida Education Association union representative Blanca Sotelo, and Ms. Johnson on or about November 1, 2019. Ms. Lancaster produced contemporaneous emails between her and Ms. Sotelo discussing the contents and filing of the grievance, including editorial comments by Ms. Sotelo about a draft of the form completed by Ms. Lancaster. Whether the form was never submitted to the School District or whether Ms. Johnson received and misplaced it, the School District does not deny that the November 1, 2019, meeting occurred. Subsequent to the meeting, Ms. Johnson sent the following email to Ms. Lancaster and Ms. Sotelo: Thank you for coming in today to follow up with me. Please be advised of the following: Moving forward more problem solving will be used if/when problems arise because of Ms. Lancaster’s separated workstation. In regard to the most recent situation with another employee’s phone, Ms. Lancaster’s extension will be transferred over to the MHS Transportation Center. In addition, each employee should route their calls when away from their desk for any extended period of time so that the line is covered. Cooperation will be given to Ms. Lancaster’s [sic] while participating in counseling sessions (i.e., in the event she needs to leave early or come in late). The details were not specified during our talk today but the following should continue to be followed to avoid any confusion between Ms. Lancaster and Mr. West. I understand from Mr. West that Ms. Lancaster already does the following when she needs to leave the office: Advance notice, 3-5 days, should be given to the Supervisor so that planning and coverage (if needed) can be arranged. up to 30 min window of time is allowed for this. Anything over the allotted time will require a leave form. Email notice to the Supervisor once in the office or when leaving the office for these sessions. Thank you again and don’t hesitate to contact my office if you have any other concerns. The conciliatory tone of Ms. Johnson’s email does not jibe with Ms. Lancaster’s recollection of the November 1, 2019, meeting and casts further doubt on Ms. Lancaster’s memory that Ms. Johnson was in possession of the Official Grievance Form. Ms. Lancaster testified that Ms. Johnson advised her to drop her grievance. Ms. Lancaster stated that Ms. Johnson believed it would do no good for Ms. Lancaster to pursue it any farther and told Ms. Lancaster that the School District administration would support her view. Ms. Lancaster testified that she felt “like I hit a brick wall.” She broke down in Ms. Johnson’s office. She cried and said, “I guess I give up.” Neither of the other participants at the meeting testified to confirm or contradict Ms. Lancaster’s version of the meeting. Ms. Lancaster was a generally credible witness, but the contrast between her testimony about the meeting and Ms. Johnson’s subsequent email causes the undersigned to question whether Ms. Lancaster’s subjective emotional response to events reflected the objective reality of the meeting. On November 7, 2019, Ms. Lancaster sent the following email to Ms. Johnson: Due to the emotional and mental damage that has been caused from flagler county schools [sic] for reporting a crime that was committed against me and the lack of care and concern I received from administrators thus feeling as being punished for someone else’s wrongdoing, I no longer will be able to continue my employment with the school system. On the same date, Ms. Johnson replied, “Thank you for letting me know, I’m sorry to hear that you feel this way. I will process your resignation effective the date of this email.” The facts found above demonstrate that the School District responded poorly to Ms. Lancaster’s complaints about Mr. Viera. Ms. Lancaster went to her supervisor, Andy West, for help in May 2019 after Mr. Viera recommenced his harassment of her. Mr. West took no effective action. Based on the totality of the evidence, it appears probable that Mr. West did not even bother to report the matter to anyone outside the Transportation Department. Mr. Viera continued to stalk Ms. Lancaster, leading to Ms. Lancaster cutting her wrists and being hospitalized under the Baker Act. Ms. Lancaster filed a complaint against Mr. Viera on August 13, 2019. The School District produced no evidence that Ms. Lancaster’s complaint was formally investigated. It appears that Ms. Gavin spoke to some witnesses without putting anything in writing, then handed the matter off to the new Director of HR, Ms. Johnson, who seems to have restarted the investigation from scratch, asking Ms. Lancaster on October 7, 2019, for the names of witnesses. Ms. Johnson’s investigation also resulted in no written witness statements and no written record. The result of the investigation was an inexplicable reprimand of Mr. Viera. However, as noted at the outset, this case is not about Ms. Lancaster’s complaint of sexual harassment and discrimination on the basis of sex, which was the basis for her separate sexual harassment claim. This case concerns Ms. Lancaster’s allegation that the School District discriminated against her on the basis of her mental disability. The evidence produced at the hearing does not support that allegation. The first and ultimately insuperable problem with Ms. Lancaster’s complaint is that she never made the School District, or anyone outside her family, aware of her claimed disability while she was employed there. In a letter dated September 9, 2019, Ms. Lancaster’s medical provider cleared her to return to work “with no restrictions.” Even at the hearing, Ms. Lancaster did not precisely describe her diagnosis.3 Ms. Gavin credibly testified that in her many conversations with Ms. Lancaster, the issue of a disability was never raised.4 Ms. Ayers-White—who was Ms. Lancaster’s union representative, who visited her in the hospital after she was Baker Acted, and who witnessed the injunction hearing for Mr. Viera—testified that she had no idea Ms. Lancaster was claiming a disability until she read her FCHR petition. Geri Drayton, the coworker who phoned the police after Ms. Lancaster cut her wrists, testified that she never knew about a disability and did not recall Ms. Lancaster asking for any accommodations. School District employee Tina Hutto, testifying on behalf of Ms. Lancaster, stated that she never knew about Ms. Lancaster having a disability and did not recall Ms. Lancaster ever telling her that she was having difficulty performing her job. 3 Ms. Lancaster offered a document in which she described “depression and anxiety and bipolar 1 and PTSD” that she said was diagnosed in 2017. However, this document was an email that she wrote and sent to an FCHR investigator on February 17, 2020, well after she resigned from her position. The undersigned did not admit this document because it had no bearing on the School District’s knowledge of her claimed disability during her employment. 4 It is noted that, despite rejecting Ms. Gavin’s attempts to justify the contradictions between the School District’s outcome letters to Ms. Lancaster and Mr. Viera, the undersigned found Ms. Gavin to be a generally credible fact witness. Though it did not discipline Mr. Viera to Ms. Lancaster’s satisfaction, the School District does appear to have taken seriously her trauma and the need to make her feel safe at work. Though Ms. Lancaster later bridled against it, the transfer to Matanzas was ordered with the agreement of all involved in order to ensure Ms. Lancaster’s safety, not only from Mr. Viera but from the coworkers she had accused of bullying her. The School District provided her with EAP information and arranged for her to leave work early or arrive late to get to counseling appointments. The documentary evidence established that until Ms. Lancaster obtained the injunction against Mr. Viera on August 22, 2019, the School District (with the possible exception of Mr. West) was unaware of the gravity of the situation with Mr. Viera. The School District was operating under the assumption that Ms. Lancaster’s major concern was the bullying and obstruction by other employees, and that separating Ms. Lancaster from these employees was the safest option for all concerned. Ms. Lancaster and her union representative, Ms. Ayers-White, agreed to the separation. At the hearing, Ms. Ayers-White was asked whether it made sense for Ms. Lancaster to come back to the main office. Ms. Ayers-White answered, “I thought she was fine” at Matanzas. Ms. Gavin credibly testified as to the School District’s consistent provision of accommodations for disabled employees. The School District consults with the employee’s physician, providing a job description to allow the doctor to assess the employee’s ability to perform and to recommend reasonable accommodations. Ms. Gavin noted one instance in which the School District changed the ceiling tiles in a classroom and provided a microphone to accommodate a teacher with vocal problems. There is no reason to assume that the School District would have refused to at least investigate accommodations had it known Ms. Lancaster was claiming a disability. Further, other than expressing her own concerns about her job performance, Ms. Lancaster presented no evidence that the School District was dissatisfied with her job performance or that any accommodation was necessary for her to continue performing in a satisfactory manner. Ms. Gavin testified, based on personal observation and her review of the personnel file, that Ms. Lancaster was a very good employee. Ms. Gavin could think of no reason why the School District would not renew Ms. Lancaster in her job position. Finally, it is noted that, whatever Ms. Lancaster’s subjective experience, little time had actually passed between the decision on Ms. Lancaster’s complaint and her resignation. On October 7, 2019, Ms. Johnson assured Ms. Lancaster that her current placement was temporary and that “I will speak with you about next steps and transition options” after the final decision on her complaint. The decision letter to Ms. Lancaster was dated October 19, 2019. Ms. Johnson met with Ms. Lancaster and Ms. Sotelo on November 1, 2019. At least from Ms. Johnson’s perspective, the meeting was productive, resulting in a plan to make the details of Ms. Lancaster’s job at Matanzas easier and a process for arranging her excused absences from work for counseling sessions. These findings are not meant to minimize Ms. Lancaster’s anguish and feelings of isolation and estrangement from her colleagues. The District, however, had only a vague sense of Ms. Lancaster’s degree of suffering and was actively taking steps to make her more comfortable emotionally and to make her workplace safe. The School District had no issues with her job performance. The School District was aware of her emotional trauma and was making it convenient for her to receive counseling. The School District was not aware that she was claiming to have a mental disability that required further accommodations. None of the actions undertaken by the School District was objectively retaliatory, notwithstanding Ms. Lancaster’s subjective perceptions. Ms. Lancaster offered no evidence that her separation from employment with the School District was anything other than voluntary. In summary, Petitioner offered insufficient evidence that she was discriminated against based on her disability. Petitioner also offered insufficient evidence that she was subjected to unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Flagler County School District did not commit an unlawful employment practice related to the Charge of Discrimination filed in this case, and dismissing the March 28, 2021, Petition for Relief. DONE AND ENTERED this 21st day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Laura Beth Lancaster 3207 Victory Palm Drive Edgewater, Florida 32141 Dylan J. Hall, Esquire Bush & Augspurger, P.A. 411 East Jackson Street Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
