The Issue The issue is whether Petitioner filed his complaint against Respondent for race discrimination more than 180 days after the occurrence of the alleged unlawful employment practices contrary to Section 760.10(10), Florida Statutes (1989).
Findings Of Fact The parties' Stipulated Statement of Undisputed Material Facts constitute the following findings of fact: The Petitioner, Floyd Peacock, Jr., a black male, was hired by the Respondent, Air Products and Chemicals, Inc., on August 22, 1980. The Petitioner was initially hired and employed by the Respondent as a maintenance mechanic at the hire (entry) level. On August 22, 1980, James Coleman, a white male, was hired by the Respondent as a maintenance mechanic. On August 25, 1980, Elvin Higgins, a white male, was hired by the Respondent as a maintenance mechanic at the second year step level. The Respondent has had two means of filling the vacancies that arose in the plant. First, whenever someone left the Respondent's employ due to retirement, a voluntary discharge, or involuntary termination, that vacancy would be posted on a job board on the Respondent's premises. Employees wishing to transfer to the department where the vacancy arose were then allowed to apply, or bid, for the posted vacancy. Bids are awarded based upon job skills and seniority. For positions within the operations department, seniority is determined by the amount of time the employee had with the company. For maintenance positions, seniority is determined by the amount of time the employee had with the maintenance department. The second method used by the Respondent to fill vacancies was a "back- fill" procedure. When an employee's bid was awarded and that employee then transferred to another department, the vacancy created in the transferring employee's department was "back-filled" with a new hire from outside of the company. Additionally, a position that was opened for bids but not bid upon was also back-filled with new hires from outside of the company. In 1982, the Petitioner, whose pay level as a mechanic with the Respondent was at the "second step/year level," became interested in a three- year position in the ammonia methanol area and inquired about bidding for the job. He was told by the personnel manager, Laura Finn, that since he was at the two-year level, he did not qualify for the three-year position. The Petitioner did not bid for the job. Two white males, Roy Mony and Clayton Perry, who were previously employed as mechanics with Carroll Construction, as had the Petitioner, were hired at the "third step/year level" and placed in the two "third step/year level" mechanics jobs. The Petitioner filed no charge or complaint with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission concerning his not bidding for the "three step/year level" mechanics position or the hiring and assigning of the two white males "three-step" mechanics to those positions in 1982. At the time of his "fifth-year step" mechanic's interview in 1985 for obtaining his "five year/step" pay increase, the Petitioner confirmed with his supervisor that James Coleman had been made senior mechanic and had been advanced to the "senior mechanic" pay level. The Petitioner was given a "fifth year/step" mechanic's pay increase. Soon after the 1985 pay increase interview, the Petitioner went to the Respondent's Personnel Department with his supervisor to inquire about why James Coleman had been made a senior mechanic before the Petitioner. When the personnel manager was unable to provide the reason, the Petitioner talked with a staff member of the Escambia-Santa Rosa Human Relations Commission about his being given a "fifth year/step" mechanic's pay increase while James Coleman received a senior mechanic's title and pay increase. However, the Petitioner did not file any complaint with that agency or with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission. In June, 1986, the Respondent had a reduction in force (RIF) that resulted in some employees' employment being terminated and other employees being reassigned to other lower level and lower paying jobs. The following actions were taken as part of the RIF process in June, 1986: Maintenance mechanics hired prior to June 10, 1977, continued in their positions. Maintenance mechanics hired after June 20, 1977, but before the Petitioner's date of hire of August 22, 1980, were assigned permanent operator positions. Fifteen or sixteen maintenance mechanics who had been hired on or after the Petitioner's date of hire were placed in a temporary job position designated as "utility operators." Among the mechanics retained in the employ of the Respondent but assigned as utility operators was Elvin Higgins, a white male senior mechanic, and the Petitioner. The remaining mechanics were discharged as a result of the RIF in June, 1986. Among the mechanics who were discharged at that time were Roy Mony and Clayton Perry, whose hiring dates were after the Petitioner's date of hire. The utility operator position was a new, temporary position created in response to the RIF. In lieu of being discharged, fifteen employees, including Petitioner, were placed in the utility operator position. Utility operators worked at reduced pay, performing work previously accomplished by independent contractors. As vacancies arose in other departments of the company, one by one, each of the utility operators were to fill these vacancies until no one remained in the utility operator position. The respondent provided the utility operators with two means of transferring out of the utility operator position into a regular, higher paying position. First, utility operators were allowed to bid on any position that was subject to the Respondent's customary bid procedure. The second means that the utility operators had for leaving the utility operator position was through the assignment of a "back-fill" position. Instead of back-filling positions with new hires from outside of the company, as was the procedure before the RIF, utility operators were to be assigned to the back-fill positions. A utility operator would be back-filled into any vacancy that had been opened up for bids under the customary bid procedure, but on which no one had bid. Second, utility operators could be back-filled into a secondary vacancy created when another employee transferred from one position to another. The utility operators were to back-fill these non-bidded [sic] positions and secondary vacancies in order of seniority with the company (i.e., by date of hire). In June, 1986, when Elvin Higgins was reduced from senior mechanic to a utility operator because of the reduction in force (RIF), the Petitioner first became aware that Elvin Higgins had previously received senior mechanic status. On July 28, 1987, Aubry Garrett, one of the utility operators, used the normal bid procedure and successfully "bid-out" of the utility operator's position and took an operator's position. The Petitioner did not bid for this position. Between the time of the RIF in June, 1986, and the time the first back-fill position arose in September, 1987, the Respondent had not provided its employees with a finalized written or oral statement about how the back-fill positions would be administered after the RIF; however, during this period before the Petitioner refused the first back-fill position, when asked about this procedure by employees, Ernest Labadie, the personnel manager, told them that utility operators would be assigned back-fill positions in the order of the employees' length of service with the company. In September, 1987, two operator positions became available for utility operators to "back-fill" as secondary vacancies. The Petitioner, as the most senior utility operator based on date of hire, was offered one of the positions, but he refused the job because it was rotating shift work and he desired to work only "day hours" like he was working as a utility operator and had worked as a maintenance mechanic. Elvin Higgins and Gene Moore, the next senior utility operators based on date of hire, accepted the "back-fill" positions and were assigned those positions in early October, 1987. At the time of the Petitioner's refusal to "back-fill" and accept the available advancement to operator, the Petitioner was informed by Ernest Labadie, the personnel manager, that the Petitioner would be placed at the bottom of the list of the utility operators for future "back-filling" of jobs by utility operators. The Petitioner made no complaint to anyone or any agency about his being placed at the bottom of the list of utility operators for "back-filling" purposes in September, 1987, and believed at that time that his placement at the bottom of the list was fair and not discriminatory. Gary Kent is a white male who is senior the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department. Before the reduction in force (RIF) in June, 1986, Mr. Kent was a mechanic, but as a result of the RIF, he was transferred to an operator's position in the amines area of the company. The amines job was not shift work. On November 24, 1987, Mr. Kent bid for an operator's position in the PVC area and received the job on December 8, 1987. His move to the PVC area from the amines area resulted in an operator vacancy (secondary vacancy) in the amines area that would be "back- filled" from the utility operators' list (i.e., without the need for bidding for the vacant position). On December 8, 1987, the vacant operator position in the amines area was "back-filled" by David Hart, who was the next utility operator on the "back- fill" list since the Petitioner was at the bottom of the list. The Petitioner became aware of this assignment, or surmised that the assignment of Mr. Hart to the amines area would occur, before the announcement of the assignment was posted and when he heard that Mr. Kent had bid for the PVC area operator position. In November or December, 1987, the Petitioner spoke with the personnel manager, Mr. Labadie, about the Petitioner's chances of getting the vacant amines area operator position that was to be "back-filled" since Gary Kent had bid for the PVC operator's position. The Petitioner was interested in this operator position because it was not a rotating shift job. The Petitioner was told that consistent with the personnel manger's discussions with the Petitioner in October, 1987, the Petitioner was not eligible to "back-fill" the position because he was at the bottom of the "back-fill" list. The Petitioner accepted the explanation and understood the policy and procedure for "back-filling." The Petitioner made no complaint to anyone about assigning the amines area operator's job to Mr. Hart instead of to the Petitioner. In January, 1988, Bruce Holiday, a white male who is senior to the Petitioner by amount of time in the Respondent's maintenance department and who has been working as an operator after the reduction in force, bid for and received on February 1, 1988, the assignment back into the maintenance mechanic. The Petitioner had bid for this position but has no complaint of racial discrimination about his not being awarded the position because Mr. Holiday was a senior to the Petitioner for the maintenance mechanic position by the amount of time in the maintenance department. In February, 1988, the Petitioner and the other two last remaining utility operators, Randy Mock and Lawrence Pearce, were assigned and "back- filled" to operator positions. The Petitioner made no complaint and has no complaint about this assignment. In November, 1988, Gary Kent, who was also senior to the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department, bid for and received on November 20, 1988, an assignment back into the maintenance department as a maintenance mechanic, a position subject to the customary bidding procedures. The Petitioner had also bid for this position. The announcement of Mr. Kent's assignment was posted on the bulletin board for employees to see. The Petitioner became aware of the assignment of Mr. Kent to maintenance on or before the posting of the announcement on November 16, 1988. On or about November 16, 1988, the Petitioner discussed with Mr. Labadie, the personnel manager, Mr. Kent's bidding and being assigned into the maintenance department as a mechanic. The Petitioner complained that since Mr. Kent had previously bid and received the PVC position in December, 1987, Mr. Kent, in the Petitioner's view, had decided at that time that Mr. Kent did not want to go back into the maintenance department. Therefore, the Petitioner surmised that, even though Mr. Kent would later be the senior person eligible to be awarded a maintenance mechanic job if he had bid it, Mr. Kent should have been "placed at the bottom of the list" for purposes of bidding on any maintenance mechanic positions. The Petitioner asserted that this would be consistent with his being placed at the bottom of the "back-fill" list when he refused to accept the "back-fill" assignment in September or October, 1987. Mr. Labadie asserted in response to the Petitioner that there was nothing inconsistent since Mr. Kent's assignment was pursuant to and consistent with the Respondent's bidding procedures and policies for maintenance department positions which were in effect and used both before and after the RIF (and under which the Petitioner was allowed to bid and did bid for mechanic's positions); while the Petitioner's assignments from utility operator to the operator positions were governed by the "back-fill" procedure. The Petitioner personally did not agree with and did not accept this explanation, although he understood the two different procedures, and told Mr. Labadie that it was Petitioner's opinion that the bidding and "back-filling" should operate the same way. In January, 1989, the Petitioner again had a similar conversation with Mr. Labadie about Mr. Kent's bidding and being assigned a maintenance mechanic's job and the Petitioner's being put at the bottom of the "back-fill" list for assignment to operator positions. In late February, 1989, Ricky Cook and John Rink, both white males who are senior to the Petitioner by the amount of time in the Respondent's maintenance department and who had been working as operators after the June, 1986 reduction in force, bid for and received assignments back into the maintenance department as mechanics. The Petitioner has no complaint, based on racial discrimination or otherwise, as to these assignments. The Petitioner's employment discrimination charge was filed with the Florida Commission on Human Relations on March 27, 1989, and filed with the Equal Employment Opportunity Commission on March 31, 1989. On or about March 29, 1989, the Petitioner bid for and received assignment to maintenance mechanic in the Respondent's maintenance department, along with Larry Perritt, who is a white male and who was a senior to the Petitioner by the amount of time in the Respondent's maintenance department. The Petitioner was assigned the job on April 16, 1989, at the senior mechanic pay level. The Petitioner has no complaints about any of these assignments. The Petitioner received a pay increase at the "top level" of senior mechanic in October, 1989, after serving six (6) months in that position. In October, 1989, Elvin Higgins, after bidding for the position, was assigned to maintenance mechanic at the senior mechanic pay level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charges. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June, 1995. SUZANNE F. HOOD, Hearing Officer 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 19th day of June, 1995. COPIES FURNISHED: Richard E. Johnson, Esq. Spriggs & Johnson W. College Ave. Tallahassee, FL 32301 Ralph B. Peterson, Esq. Beggs & Lane P. O. Box 12950 Pensacola, FL 32576-2950 Sharon Moultry, Clerk Human Relations Commission John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was unlawfully discriminated against on the basis of his race, when he was not hired by the Respondent for a vacant job position.
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees. There has been no showing that the reason stated for the termination was pretextual. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired." Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me." The store manager then asserted they were not brothers. He called Petitioner a "damn nigger." Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.
Recommendation Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case. RECOMMENDED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 17th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618 Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #5 - #7. Accepted. See HO #6. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees. Rejected. Contrary to fact. See HO #7 and #9. Accepted. Accepted. See HO #15. Rejected. Contrary to fact. See HO #9. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #3. 3. Accepted. 4. Accepted. See HO #6. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #10. 8. Accepted. See HO #13. 9. Accepted. See HO #14 and #15. COPIES FURNISHED: ALBERT A WHITE 809 GRANITE RD BRANDON FL 33510 DONALD C WORKS III ESQ RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL 200 E BROWARD BLVD PO BOX 1900 FT LAUDERDALE FL 33302 RONALD M McELRATH EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570 DANA BAIRD ESQ GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570
Findings Of Fact Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service. DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida. LINDA M. RIGOT 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 9th day of June, 1986. COPIES FURNISHED: Gilda A. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John A. Fritz 301 N.W. 51 Court Fort Lauderdale, Florida 33309 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee Florida 32301
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 25th day of January, 2007.
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 December, 2018.
Findings Of Fact On December 6, 7 and 8, 1988, petitioner Harold E. Solano was absent from his job at the Department of Transportation without leave.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration enter a final order deeming petitioner to have abandoned his career service position with respondent. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 18th day of July, 1989. COPIES FURNISHED: Harold E. Solano Route 1, Box 5 Elkton, Florida 32033 Charles G. Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, Florida 32399-0458 Andrew J. McMullian, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
