Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK 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 7th day of March, 1988.
Findings Of Fact At all times pertinent to the Administrative Complaint, Respondent held Teacher's Certificate #123157 (Petitioners' Exhibit #1). In 1980-1981, Respondent was employed as an elementary school teacher at Cove Elementary School ("Cove") in Belle Glade, Palm Beach County, Florida. Respondent had been employed at Cove for approximately ten years and in 1980-1981 taught second grade. In 1976-1977, Respondent had been cautioned for inflicting corporal punishment on students without following the statutory guidelines and school board policies. At the beginning of the 1980-1981 school year, Respondent was accused of inflicting corporal punishment on her second grade students. Respondent was cautioned by her principal, who restated the policies of the Palm Beach School System to the Respondent. These policies were consistent with Section 232.27, Florida Statutes. On or about February 10, 1980, Respondent struck Buster Brockman, an eight-year-old second grade student, in the head with an automobile fan belt. This caused an injury to the child's face about his left eye. The Respondent also threw Brockman against a table, bruising his ribs. Brockman was treated at the emergency room and released. This incident occurred in Respondent's classroom without an adult witness and without the prior permission of her principal. Respondent was severely cautioned by her principal. In March of 1981, Respondent stuck Tony Aunspaugh, Jr., an eight-year- old second grade student, with an automobile fan belt across the right thigh. The blow left a dark welt/bruise on the boy's thigh. Respondent struck Aunspaugh in her classroom without an adult witness and without her principal's permission. Respondent was again cautioned by her principal. On or about May 29, 1981, the Respondent struck Reyes Reyes and another boy, both students in her second grade class, several times on the back with an automobile fan belt. The blows left dark welts/bruises on their backs. Respondent was suspended on this occasion, pending the school board's action. At all times during the 1980-1981 school year, the West Palm Beach School Board's policy regarding corporal punishment was that before corporal punishment could be administered to a student, the principal was to be advised and was to give permission, and the punishment was to be administered by the principal or the principal's designee before an adult witness who was a member of the staff. On none of the several occasions Respondent struck students did she adhere to this policy. The investigation which followed the Respondent's suspension brought to light other incidents of Respondent having struck children which had not been known to the school administration previously. Various students of Respondent testified about being struck by her during the 1980-1981 school year. Their collective testimony was that Respondent had engaged in inflicting corporal punishment during the entire school year in a manner contrary to the school board's rules and the statutory requirements. Notice of the subject hearing was provided the parties as required by the statutes and rules. The Education Practices Commission introduced Petitioner's Exhibits #1 through #5, which were received in evidence.
Recommendation Having found the Respondent guilty of violating Section 231.28, Florida Statutes, the Hearing Officer recommends that the Education Practices Commission revoke Respondent's teaching certificate and, further, that recertification be considered only upon a demonstration by Respondent that she is fully rehabilitated. DONE and ORDERED this 26th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of March, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301 Mrs. Audrey Clark 1213 Vaughn Circle Belle Glade, Florida 33430 Donald L. Griesheimer, Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Chester K. Lewis (Lewis), applied to the Respondent, Department of Education (Department), for a Florida teacher's certificate. By letter of January 15, 1987, the Department advised Lewis that his application had been denied, and Lewis filed a timely request for formal hearing. Pertinent to this case, the application for teacher's certificate posed the following questions, and Lewis gave the following answers: - FULL TIME TEACHING EXPERIENCE Grades taught or No months Type School State District School if departmental- taught in Certi- Year (County) ized subjects school ficate taught term Held * * 1982 to Florida Dade Edison 1983 Park Elem. 9 1983 to Florida Dade Edison 1984 Park 9 1984 to Florida Dade Edison 1985 Park 9 1985 to Florida Dade Edison Varied 1986 Park Elem. 9 PLEASE CHECK ONE YES X NO Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. Where Arrested Dates Nature of Charge(s) Disposition(s) Trespassing Resist- Nolo Contendere Dade County 5/6/82 ing Arrest 9 mos served 1/19/83 NOTARIZATION I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. /s/ Chester K. Lewis Signature of Applicant Sworn to and subscribed before me this 3rd day of June , 1986. My Commission Expires Seal and Signature of Notary Public Contrary to the sworn representations in part IV of the application, that he had been employed full time by the Dade County School Board for the school years 1982-83 through 1985-86, the proof established that Lewis was employed by the Dade County School Board as follows: For the 1982-83 school year Lewis was employed as a per diem (daily) substitute teacher, and worked only 29 days between March 1983 and June 1983. For the 1983-84 school year Lewis was employed as a daily substitute teacher, and worked at 5 different schools between November 1983 and June 1984 for a total of only 5 1/2 days. For the 1984-85 school year Lewis was employed as a daily substitute teacher, and worked at 5 different Schools between October 1984 and June 1985 for a total of only 15 days. For the 1985-86 school year Lewis was employed as a daily substitute teacher, and worked only 1 day during that school year. With respect to Lewis' response to part V of the application, the proof established that by Information filed May 27, 1982, in the Circuit Court of Dade County, Florida, Case No. 82-11708, he was charged with aggravated assault (Section 784.021(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). On January 19, 1983, Lewis entered a plea of nolo contendere, and the court sentenced him to a term of imprisonment of nine months. Regarding the substance of the charges, the proof established that on May 6, 1982, at or about 11:00 p.m., in Dade County, Florida, Lewis did commit the crimes of aggravated assault (Section 784.O2l(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). At the aforesaid time and date, a uniformed Florida Highway Patrol Officer (trooper) responded to a request for assistance at the home of a female complainant (complainant) who professed a fear that Lewis would harm her. While at the complainant's residence, the trooper took a telephone call from Lewis, identified himself as a trooper with the Florida Highway Patrol, and asked Lewis what the problem was. Lewis replied: I don't care who the fuck you are. If I get over there in 15 minutes and you're there I'm going to kill you. Approximately 15 minutes later, Lewis drove up to the residence. The trooper then told Lewis: Look, we don't need a problem Just leave. She doesn't want to be bothered with you. Just leave so we don't have a problem with you. Lewis responded, "Fuck you", sped down the street, and turned the car to face the trooper. Lewis then sped his car at the trooper, who barely avoided injury by jumping out of the way of Lewis' vehicle. Lewis then drove his car into an alley, and as the trooper approached from the rear Lewis attempted to back his car over the trooper. Again the trooper barely avoided injury. Subsequently, Lewis jumped from the car, and ran toward the complainant's residence. At that time the trooper removed the keys from the ignition of Lewis' car, and pursued Lewis. Fortunately, a backup unit from the Metro-Dade Police Department arrived and Lewis fled to his car and tried to lock himself inside. The trooper, noting that the front passenger door was open, entered the vehicle to arrest Lewis. During the course of the trooper's efforts to arrest him, Lewis repeatedly punched and kicked the trooper. Lewis' conduct demonstrated gross immorality or an act involving moral turpitude. His conduct was inconsistent with the standards of public conscience, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to such notoriety, Lewis' service in the community, as well as his effectiveness in the school system, has been severely impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Chester K. Lewis, for a Florida teacher's certificate be DENIED. DONE AND ORDERED this 8th day of July, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 8th day of July, 1987. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Mr. Chester K. Lewis 1028 N.W. Third Avenue, #1 Miami, Florida 33136 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated for violation of School Board policies.
Findings Of Fact Petitioner is the local school board responsible for hiring, firing and overseeing all employees working for the School Board and/or within the Lee County Public School system (also called the "School District" herein). Respondent is an employee of the School Board, serving as an electronics field technician in the School Board's maintenance department. Respondent has worked for the School Board off and on since 1996, when he was a school bus driver. He has been an electronics technician since 2000. In that position, Respondent oversees the maintenance and repair of clocks, alarms, intercoms, scoreboards, sound and lighting systems, burglary systems, and the like for all schools within the School District. Respondent has never received any form of discipline from the School Board. His record is clear, and he has been commended for his work. His work ethic was viewed by others as consistent with that of similarly-situated employees (although Respondent may take more breaks than others). School District maintenance workers work an eight-hour work day, commencing at 7:00 a.m. (per provisions of the SPALC Contract and Collective Bargaining Agreement). Each worker is expected to arrive at the maintenance area on Canal Street (hereinafter "Canal Street") and be ready to commence work by 7:00 a.m., each morning. The work day generally starts with a briefing of sorts to make sure each worker is aware of his/her tasks for the day. After the briefing, workers pick up tools and supplies from various locations around the Canal Street area and then proceed to the first school site requiring performance of an assigned task. A work day for Respondent could involve driving to any one of the numerous school campuses within the School Board's jurisdiction. Workers are given 30 minutes for lunch each day, including the time it takes to drive to and from the lunch site. In addition, workers are allowed two 15-minute breaks, one in the morning and another in the afternoon. Again, the break time includes the time taken to drive to a break site, if the employee decides to take a break at other than the place he/she is working at that time. Employees are not permitted to do personal business or make unauthorized stops during the work day without prior permission from a supervisor. Respondent is a member of the U.S. Naval Reserve and currently holds the rank/level of E5. He attends regular weekend drills each month and also spends two weeks each year on temporary active duty. Respondent has been in the reserves throughout his tenure with the School Board. There has never been an issue between Petitioner and Respondent concerning Respondent's military status or his taking two weeks each summer to attend to his military duties. Respondent is proud of his military service, as evidenced by the fact that he wore his military uniform during both days of the final hearing.1 In May 2008, Respondent spent 17 days on active duty, serving in Bahrain. This was Respondent's active duty requirement for calendar year 2008. However, he then volunteered for an additional period of active duty in July 2008. This second active duty stint was done in furtherance of his military career and at the suggestion of a superior officer. It was strictly voluntary, but Respondent felt somewhat compelled to "volunteer" based on his superior's comments. Respondent then did his second active duty stint beginning June 28, 2008, and ending July 27, 2008. This period of time coincided with the maintenance department's busiest time for its electronics technicians. The maintenance department annually used the time in between school terms to get various maintenance items completed while it would be the least disruptive to students in the classrooms. The summer period is used to "clean up" things that remain pending from the school year. It is clear that Respondent's supervisors were not happy that Respondent had volunteered to be absent during this busy time, but Respondent was allowed to go on active duty anyway. This left the School Board short-handed as to its needed electronics technicians for that period of time. Respondent's supervisor expressed concern to Respondent about this second period of active duty, specifically that it was occurring during the summer break. Respondent recognized the strain this additional leave put on his co-workers and apologized for that fact. Respondent assured his supervisor it would not happen again. Upon his return from the voluntary active duty, Respondent was told that he was being placed on "suspension of driving privileges," meaning that he could not drive School Board vehicles until further notice. This suspension was based on information gleaned from review of data generated by a new tracking system being used in School Board maintenance vehicles (which will be discussed below). Respondent is of the opinion that the suspension was some sort of retaliation for his having gone on the second active duty tour during June and July. The Global Positioning System--Background Beginning in May 2008, the School Board decided to install global positioning system (GPS) devices in all of its maintenance vehicles. The installation began with 50 randomly selected vehicles of the 150-vehicle fleet. The purpose of the GPS devices was to track School Board vehicles and assure that all vehicles were being utilized properly and in accordance with School Board policies. This measure was prompted by repeated complaints from the public about maintenance vehicles being seen involved in non-school activities or at non-school locations. The GPS system in Respondent's maintenance vehicle was installed on May 22, 2008. The signal from the GPS was instantaneous, but required calibration and installation of certain software before it could be effectively utilized. The GPS became fully functional on June 20, 2008, at 10:07 a.m. The GPS system tracked the location, speed, and duration of stops for the vehicle. This data was maintained on a computer server which could print maps showing a vehicle's movements on any given day or time. The maps could be annotated with the vehicle's speed, length of stay at any one location, and actual driving route. On or about June 27, 2008, William G. Moore, director of School Support for the School Board, was being given a course on the use of the new GPS system and how it worked. During his training, Moore randomly selected some vehicles to review, solely for the purpose of ascertaining how the system tracked and recorded information. One of the vehicles Moore randomly selected was vehicle No. 423, which turned out to be Respondent's work van. Moore did not know Respondent personally and did not know to which of the 150 or so School Board vehicles any one person was assigned. Moore then selected June 26, 2008, randomly as a record to review as part of his training. The June 26, 2008, record for vehicle No. 423 immediately raised red flags in Moore's mind. He observed that the vehicle was at a non-school site for over three hours (although it was later determined to be a training site and a legitimate stop). The vehicle was also shown entering a residential community (although again it was later determined that the driver had permission for that trip). However, based on his initial determination that something was amiss and not having any explanation for those instances, Moore decided to more fully examine the route history for vehicle No. 423. First, he determined that this vehicle was assigned to Respondent. (The vehicle will hereinafter be referred to as the work van.) Moore's further investigation turned up a number of questionable stops and trips by the work van during the period June 20 through June 27, 2008. The findings of his investigation will be set forth in pertinent part below on a day-by-day basis, coupled with explanations from Respondent as to each day's activities. Friday, June 20, 2008 At 10:07 a.m. (when the GPS first started working), the work van was departing from Ft. Myers High School ("Ft. Myers High") en route to Estero High School ("Estero"). Upon arrival at Estero, the van remained parked for five minutes, then left the parking lot and drove around the building to the front entrance of Estero for a period of one minute. Leaving Estero, the work van headed to a residential neighborhood known as the Bimini Circle Subdivision, where it stayed for 11 minutes. The work van then proceeded to a 7-11 Store where it remained for 35 minutes. The next stop was back at Estero where the work van remained for one hour and 46 minutes. At 2:00 p.m., the work van left Estero, stopped briefly at the 7-11 Store, then returned to Canal Street at 2:59 p.m. The School Board perceived several violations of policy gleaned from the information on the GPS for the work van during the June 20, 2008, work day: First, the work van was at Estero for a total of two hours and 13 minutes on this date. The total time at Ft. Myers High for this date is not detailed by the GPS, but would presumably be approximately two and a half hours, i.e., allotting time for driving from Canal Street up until the GPS turned on at 10:07 a.m. Respondent's daily activity log indicates five hours at Estero and three hours at Ft. Myers High. Respondent took two unauthorized stops at a store, presumably for personal reasons, and then spent 11 minutes at a residence during work hours. Respondent took in excess of 30 minutes for his lunch hour (35 minutes at a location, plus an undisclosed amount of time driving to and from that location). Respondent took a longer route back to Canal Street than necessary, presumably wasting time. (Employees were expected to work the entire day, then return to Canal Street precisely at 3:00 p.m. A 30-minute debriefing session, return of tools, etc., would occur and then employees would be released from duty at 3:30 p.m. Employees were told repeatedly NOT to return to Canal Street until 3:00 p.m.) Respondent explained his actions and refuted the School Board's concerns as follows: Upon leaving Canal Street that morning, Respondent went directly to Ft. Myers High and remained there until 10:07 a.m. The rest of his day, approximately five hours, was dedicated to work at Estero, but included travel time, breaks, and lunch. The two hours and 13 minutes actually at Estero should be supplemented by driving time to the school from Ft. Myers, driving time to his breaks and lunch, driving time to and from his personal errand, and driving time back to Canal Street. Respondent remembers asking for and receiving permission to stop by his wife's house (the residence in the Bimini Circle Subdivision) to retrieve his wallet. The stops at 7-11 Stores were for lunch and two allowable breaks. The longer route back to Canal Street was taken in order to avoid an accident on the shorter route. During June of 2008, technicians would fill out their daily work logs using rounded estimates of time. They made no attempt to precisely state exact periods of time spent at any one job site. Rather, the daily logs were a very general statement of which job sites had been involved in the employee's work that day. (This procedure has subsequently changed, but was extant at all times relevant hereto.) It is clear Respondent took a longer than allowable lunch break on this date. Further, the time taken for breaks, if drive time was included, was in excess of the allotted amounts. It is clear Respondent was actually at Estero for only about half the time recorded on the daily work log. However, under the procedures in place at that time, the work log time entry was not dispositive of his actual time at the site. Monday, June 23, 2008 On this date, the School Board gleaned the following violations of policies from its review of the GPS log: Respondent was at Estero for two hours and nine minutes, but his daily work log indicates six hours at Estero and two hours at Gateway Elementary. The work van made stops at McDonalds and Bank of America on the way to Estero, then at the Bimini Circle address for eight and a half minutes after leaving Estero. Petitioner says any stops for personal business are strictly prohibited while in a School Board vehicle. After a 47-minute stop at Dairy Queen, the work van then proceeded to Gateway where it stayed for approximately two hours. Upon leaving Gateway, the work van stopped at Home Depot--an unauthorized stop--for about 18 minutes. Respondent provides the following explanation and rebuttal concerning the School Board's concerns for that day: Again, his work sheet indicates the correct amount of time actually at Gateway. The remainder of his day, including all travel, breaks, and lunch, was allocated on this time sheet to Estero no matter how long he was actually there. The stops at McDonalds and Bank of America were simply to allow his co-worker (Sheryl Reed) to get an iced tea and to get money for lunch. Respondent maintains that these types of stops were not specifically prohibited and were common practice. Respondent maintains the stop at his wife's house was his break time (although a stop at McDonalds and Bank of America had already occurred that morning). The 47-minute lunch hour was caused by Respondent simply losing track of time. That is, he admits that it was a longer lunch break than allowed, but it was not done intentionally. The stop at Home Depot was to obtain a coaxial wire needed for the Estero job, but the wire was not available. Employees are allowed to shop at local retail stores to acquire equipment or supplies not available through the School Board. However, all such purchases must be made by way of a purchase card (P-Card) so that purchases can be tracked. There is no P-Card receipt for the Home Depot visit on this date, but Respondent maintains that is because no purchase was made. That is, the coaxial wire he was looking for was not available. Reed said that Respondent made personal purchases from Home Depot and Lowe's on occasion during the summer of 2008 (because he was in the process of remodeling his house). He had purchased floor tiles and other items a couple of times a week that summer. However, she cannot remember whether he purchased anything on that particular date. Respondent admits that he did make purchases of home improvement products during work hours and transported the products in the work van to his house. He does not remember making any such stops for purposes during the week of June 20 through 27, 2008. Tuesday, June 24, 2008 On this date, Respondent's daily work log indicates three hours spent at Gateway and five hours spent at Island Coast.2 The GPS indicates the work van was at Gateway for three hours and at Island Coast for one hour and 40 minutes. The School Board also found the following other policy violations: A stop at Weaver's Corner for 36 minutes and 40 seconds, presumably a long lunch made longer by travel time to and from the lunch venue. An unauthorized visit for eight minutes and 40 seconds at a bank. A visit to a gas station for eight minutes, then a short drive to another gas station for five minutes. Respondent provides the following explanation and rebuttal to the School Board's findings: As before, the extended period of time for the Island Coast job site includes travel, breaks, and lunch. However, it would have been more accurate on this day to have split the two job sites equally. The stops at the gas stations were intentionally made so as not to return to Canal Street before the allotted 3:00 p.m., return time. Respondent does not provide any explanation for the longer than allowable lunch break. Wednesday, June 25, 2008 There were three stops on this date listed on Respondent's daily work log: Island Coast (4 hours), Dunbar Community (2 hours), and Ft. Myers High (2 hours). The GPS indicates the work van was at Island Coast for two hours and 11 minutes; at Dunbar Community for 11 minutes and 20 seconds; at Villas Elementary for one hour and 14 minutes; then at Ft. Myers High for four minutes and 40 seconds. Other perceived policy violations included: A short stop at a bank in the Wal-Mart parking lot upon leaving Canal Street. A lunch stop of 42 minutes and 30 seconds, not counting driving time to and from the restaurant. Another stop at Bank of America for in excess of ten minutes. A short, seven and a half-minute stop at a shopping center. Respondent provided the following in rebuttal and response to the School Board's perceived violations of policy: The quick stops at the banks were not prohibited and were common practice. They may have been part of Respondent's break time on that date. The lunch hour ran over, but was not excessive or intentional. It may have also included part of a break he never took that day. Thursday, June 26, 2008 This is the date that Moore initially reviewed in his training session that raised red flags concerning Respondent's time issues. On this date, the daily work log indicates seven hours in training and one hour at Villas Elementary. The School Board's concerns about this date are set forth above, but would also include: An authorized trip during the lunch hour for Respondent to retrieve a lap top which was being delivered by overnight delivery (so the computer would not be left sitting on the front porch). This trip which took approximately 18 minutes, of which 30 seconds was spent stopped at his house. Respondent also took time for lunch before returning to the training site. A circuitous, out-of-the-way route between the training site and the next job site (Villas Elementary). A short stop at a 7-11 Store and then a longer-than- usual route back to Canal Street. Respondent's explanation and rebuttal to the School Board's concerns were as follows: Respondent had permission to make a quick visit to his home during the lunch hour to see why his home alarm had activated. (He does not remember anything about a lap top or a need to retrieve it.) Respondent says that in the 30 seconds his work van was at the house, he exited the vehicle, walked to the house, unlocked the door and entered, turned off the alarm (which had been activated by his dog, who had escaped from his kennel), put his dog back in its kennel, re-set the alarm and left. Respondent was able to do his personal errand and get to the restaurant and eat lunch with his co-workers within the time (one hour) allotted for lunch that day by the trainer. The circuitous route was for the purpose of delivering some money to his daughter at her school. She was waiting for him outside, and he didn't even have to stop the work van to hand off the money. Rather, his daughter reached out and grabbed the money as he rolled past. The stop at the 7-11 Store was to use the rest room. Respondent's testimony concerning the stop at his house is not entirely believable. It would seem to take more than 30 seconds to accomplish the things that he did. However, inasmuch as he made the stop and was still able to join his co-workers in time for lunch, the reason for his home visit is immaterial. Also, the rolling delivery of money to his daughter is very unusual, but there is no evidence that the exchange did not take place in that fashion. Friday, June 27, 2008 This day's daily work log indicates three work sites: Dunbar Middle School (4 hours), Ft. Myers High (2 hours), and Cypress High School (Cypress High)(2 hours). The GPS indicates 33 minutes and 50 seconds at Dunbar; one hour and 47 minutes at Ft. Myers High; and five minutes and 50 seconds at Cypress High. The work van then went back to Dunbar for one hour, 51 minutes and 30 seconds. The School Board's other concerns about time and travel on this date are as follows: After leaving Canal Street that morning, the work van made stops at McDonalds for three minutes and at Lowe's for 15 minutes. There is a stop of one hour and eight minutes at a shopping plaza, presumably a long lunch hour. Respondent's response to the allegations of policy violations for this day are as follows: The McDonalds visit was again an allowable stop (as he understood the policies) for his assistant to get an iced tea. The Lowe's stop was for the purpose of getting concrete anchors needed for a School Board job, but none were available and so no purchase was made on the P-Card. The long lunch hour was just that; he was not thinking clearly because this was just one day prior to going on active duty and he was preoccupied with those thoughts. The extra driving time was due to the fact that after leaving Dunbar, Respondent was called on the radio to go back there for an emergency job. The daily work logs do not correspond exactly with Respondent's work day because that was not the purpose of the logs. The logs were, at that time, simply an indicator of which schools had been visited on any given day. There was no effort by anyone to be exact or precise with the times recorded on the daily logs. The daily logs are essentially of no value in determining where an employee might have been at any point in time on any given day. There is no way to reconcile the GPS times with the daily work logs. Each employee is expected to work a full day. If the number of tasks assigned during the morning meetings at Canal Street did not fill a technician's day, he/she was expected to locate additional work or do work on an on-going project to fill the day.3 Nonetheless, it is often difficult to coordinate a day's activities to make the assignments equate to the exact hours and minutes in a work day. A large part of an employee's time during the work day is spent driving his/her vehicle. The driving time is supposed to be factored into the time spent on a particular work site. Thus, if it took 30 minutes to get to a work site, that time would be added to the time spent actually at the site. Then, when driving to a subsequent work site, the drive time would be assigned to that next site, etc. Employees are on their honor to take breaks and lunch only when allowed and for the time allotted. There is no time clock, so each person must attempt to keep time themselves so as to honor the allotted times. This is often difficult due to slow service at a restaurant, inability to take breaks at a particular time, or other factors. The GPS system has provided the School Board with an effective tool for monitoring its employees' movements and location. However, at all times relevant hereto, the GPS system was in its infancy and the School Board was still learning how to assimilate and read the data generated by the system. Thus, Respondent's activities from June 20 through June 27, 2008, were examined in a way no other employee's had been looked at heretofore. It is, therefore, hard to make a comparative determination of Respondent's actions versus an established norm. Nonetheless, the School Board's findings are supported by the GPS data. That is, the daily work logs are not consistent with time actually spent at particular job sites. Respondent's lunch breaks exceed the allotted 30-minute time period almost every day that was examined. There are stops at local establishments that are not part of the employee's work duties. Some of the routes taken by an employee are not the shortest routes, although it is impossible to ascertain whether they are the best routes based on other extraneous factors. The time spent on breaks, versus travel time, is hard to ascertain with any degree of certainty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, rescinding the notice of termination and imposing a less stringent penalty, e.g., a period of probation, a letter of reprimand and/or some remedial training, against Respondent, Christopher Rasmussen. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 22nd day of June, 2009.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a paraprofessional, non-instructional employee at all times relevant to these proceedings. Respondent School Board is the body politic responsible for the administration of public schools within the Suwannee County School District. Petitioner was a member of the non-instructional chapter of the United Teachers of Suwannee County, Florida, and was subject to the terms and conditions of the collective bargaining agreement between that organization and Respondent. Additionally, Petitioner’s employment was subject to the terms and conditions set forth in the Continuing Contract of Employment Non-Instructional Education Support Employees of the Public Schools executed between Petitioner and Respondent. Petitioner worked at the Suwannee Primary School in Live Oak, Florida. Petitioner’s work schedule required him to work Monday through Friday of each work week. Petitioner’s duty day started at 7:30 a.m. and ended at 2:40 p.m. Marilyn K. Jones, the principal of the Primary School, was Petitioner’s immediate supervisor. Although their surnames are the same, Principal Jones and Petitioner are not related. Petitioner approached Jones on February 14, 2005, and spoke with her regarding his recent employment with a state prison. Petitioner informed Jones that he had been hired as a corrections officer and that he was required to attend orientation and training sessions. Petitioner informed Jones that the initial orientation and training sessions were held during times he was required to work at the Primary School. Petitioner asked for a couple days off from his work at the Primary School to attend these initial sessions. Petitioner was hopeful that once the training and orientation sessions were completed, his work hours with the state prison would be from 4:00 p.m. to 11:00 p.m. and would not interfere with his employment with Respondent. Jones informed the Petitioner that he could use personal leave time that he had accumulated to attend the orientation and training sessions. Jones requested that Petitioner keep her posted regarding the days he would be absent and directed him to complete and submit the forms required to take leave prior to the actual absences so that arrangements could be made for substitute personnel to assume Petitioner's duties. Petitioner did not, however, submit the proper leave forms and the training period at the prison was longer than the originally expected. Additionally, after discussions with the payroll Department, Jones learned that the Petitioner did not have enough accumulated leave time to allow for his previous absences. Jones and the Petitioner had a telephone conversation on March 5, 2005. Jones informed Petitioner that he had been absent more times than their initial understanding, that he had failed to submit the leave forms in advance of the days he would be absent, and that he did not have leave time available. Petitioner apologized for the additional time that he had been absent and again noted that he thought that after the first few days of training, his work at hours at the prison would be from 4:00 p.m. to 11:00 p.m. Jones told Petitioner that his continued absences would be unauthorized and that she did not want him to be fired for taking unauthorized leave. Jones informed the Petitioner that if he wished to resign, he could submit his resignation to her. On March 7, 2005, Petitioner met with Jones and her assistant principal Betty Ann Sumner, along with Sheryl Daniels, the president of the Teacher’s Union, to discuss Petitioner’s absences. Petitioner expressed his desire to work three days a week at the Suwannee Primary School and the other two days at his job with the prison. Jones reiterated her previous statements to Petitioner that she was concerned for him and did not want the School Board to terminate his employment based on his absenteeism. Jones informed Petitioner that he had taken days off from work without providing any advance notice and advised that in the event of future absences, Petitioner must submit the appropriate forms in advance. When Petitioner raised the subject of a leave of absence until the fall semester so that he could schedule his employment with the prison and Respondent to avoid time conflicts, he was referred to Respondent's district office. Subsequently, Petitioner requested a 10 week leave of absence with the Superintendent of the Suwannee County School District, J. Walter Boatright, to continue to pursue training as a corrections officer. Under School Board policy, an absence in excess of five days has to be approved by the School Board. Boatright declined to bring Petitioner’s request for leave to the Suwannee County School Board based on his view that the Board’s policies did not allow an employee an extended leave of absence to receive training for an unrelated second job, that the end of the school year was approaching, and that the School District needed the presence of all of its employees. As established by Boatright's testimony, Respondent often has difficulty finding substitute personnel when its employees are absent for wholly legitimate reasons. Boatright informed Petitioner that he would not recommend that the School Board approve Petitioner’s request and would not bring Petitioner’s request to the School Board for its consideration. Additionally, Boatright recommended that the School Board deny Petitioner’s request for leave for the days that he had already been absent. Petitioner never personally appeared before the School Board to submit his request for personal leave. After Boatright's decision was communicated to him, Petitioner was again absent without leave on several occasions. Petitioner met with Boatright on March 24, 2005. At that meeting, Boatright warned Petitioner that he faced disciplinary action, including termination from employment if he continued to be absent from his non-instructional position without leave. In response to Boatright’s warnings, Petitioner said, “Anybody can do what I do” and suggested that Boatright simply obtain a substitute teacher to fill his position. Following Petitioner's remarks, Boatright informed Petitioner that his role with the Suwannee County School District as a paraprofessional, non-instructional employee was important. Sheryl Daniels, the president of the United Teachers of Suwannee County was also present at the meeting on March 24, 2005, with Boatright and Petitioner. Daniels asked Boatright to reconsider Petitioner’s request for leave because Petitioner had been a good employee in the past and this should merit some additional consideration. Boatright, however, denied Petitioner’s request for leave. Later, Petitioner received a letter dated April 20, 2005, from Boatright, confirming and reiterating the warning delivered to Petitioner during the March 24, 2005. In this letter, Boatright, advised Petitioner “that any further absence without leave on your part after the receipt of this letter will result in my recommendation to the Suwannee County School Board for your termination.” Subsequent to Petitioner’s receipt of the April 20, 2005, letter from Superintendent Boatright, Petitioner was again absent without leave in late April and in May of 2005. On April 28, 2005, Petitioner received his annual employment evaluation. The evaluation was performed by Jones, his principal. An employee’s overall evaluation rating is determined by adding the employees’ scores in seven different categories. Although Petitioner received an overall rating of “Effective,” Petitioner’s rating with respect to his professional responsibilities was “Needs Improvement.” Jones’ evaluation noted that although Petitioner did a good job in the computer lab, his frequent absences were a concern and that student behavior had deteriorated in Petitioner’s classes when he was absent. On April 28, 2005, Boatright filed a petition with the School Board to terminate Petitioner’s employment. A hearing was scheduled for May 15, 2005. The School Board rescheduled the May 15, 2005, hearing, however, when Petitioner requested additional time to prepare for the hearing. Thereafter, Petitioner was served with an Amended Petition for Termination of Employment filed by Boatright. The Superintendent’s Petition for Termination of Employment charged Petitioner with violating Suwannee County School Board Policy Section 6.22, which states, “[a]ny employee of the District who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and the employee contract shall be subject to cancellation by the School Board.” By letter dated May 31, 2005, Petitioner submitted a letter of resignation to Respondent. In that letter, Petitioner wrote that he was submitting his resignation due to the denial of his request for an unpaid leave of absence and the need to avoid further damage to his reputation. Petitioner also stated in the letter that he thought he had been the subject of discrimination and was left with no alternative but to resign his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 5th day of July, 2006, in Tallahassee, Leon County, Florida. S DON W. 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 5th day of July, 2006. COPIES FURNISHED: Mike Jones Post Office Box 372 Live Oak, Florida 32064 Andrew J. Decker, IV, Esquire Andrew J. Decker, III, Esquire Post Office Box 1288 Live Oak, Florida 32064 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent, William Wells, is an employee of Petitioner, Pinellas County School Board, and has been employed as a plant operator since February 1989. During May 1993, Respondent was assigned to Palm Harbor Elementary School. Respondent's immediate supervisor was Arnold Harris. Harris' immediate supervisor was Roosevelt Hall. On or about May 12, 1993, Respondent asked his supervisor, Harris, a night foreman, if he could take some mulch for use at his residence. Harris told Respondent that he saw no problem and gave his approval. The mulch, some of which Respondent took, was donated and delivered to Palm Harbor by Boen's Tree Trimming Service. Mulch similar to that which Respondent was given permission to take from Petitioner was available to the public at no charge at a location approximately two miles from the school. On Saturday, May 15, 1993, Respondent accompanied by his nephews, Peter and George, whose ages are 11 and 12 years old, respectively, took approximately two "gurneys" of mulch. A gurney is represented to be a five-gallon container. Hall observed Respondent removing the mulch from the school on that day but he was unaware that Harris had given Respondent permission to take the mulch. On May 16, 1993, Hall claims to have seen Respondent exiting the school's parking lot for the second time, however his vision was obscured. Hall did not clearly see the driver of the vehicle although he believed it to be Respondent. Respondent admits that he took mulch from the school on May 15, 1993. However, he denies that he returned to the school on the following day to take more mulch. Also on that same day, May 16, 1993, Rose Kane, while on campus, observed a young boy and a man loading mulch into a vehicle, however she was unfamiliar with the individuals loading the mulch into the truck and testified that it was not Respondent. It is more likely than not, that Respondent did not take mulch from the school on May 16. This is especially so in view of the fact that Respondent freely admitted taking the mulch on May 15. On Monday, May 17, 1993, Respondent "acted as if it was business as usual" when Hall saw him. Respondent made no mention of the mulch nor was the matter discussed. Hall reported Respondent as having taken mulch from the school which triggered an investigation by Petitioner. During the investigation, Petitioner requested that Respondent take a polygraph exam to clear him of the charges. Respondent agreed to do so and to pay for the cost of having the test administered. The initial polygraph results were inconclusive and Respondent, again at his own expense, took a subsequent polygraph test. These results indicated that Respondent evidenced no deception when he answered questions put by the polygrapher. On June 22, 1993, Investigator Franz, Office of Professional Standards with Petitioner, delivered to Respondent a stipulation of agreement between Petitioner and Respondent with the result that the Respondent accepted a three- day suspension without pay. Although Respondent executed the stipulation, he has challenged same and requested a hearing contesting the Petitioner's recommendation that he be suspended for three days without pay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order rescinding its proposed suspension of Respondent, without pay, and expunge all derogratory references about this incident from his personnel file. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of January 1994. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4012 Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, contrary to the greater weight of evidence, Paragraphs 3, 4, and 8, Recommended Order. Paragraph 7, rejected, unnecessary. Paragraphs 8 and 9, rejected, contrary to the greater weight of evidence, Paragraphs 7 and 8, Recommended Order. Paragraph 10, rejected, irrelevant and unnecessary. Paragraph 11, last sentence adopted as modified, Paragraph 6, Recommended Order. The remainder of Paragraph 11 is rejected as being irrelevant and not probative of the issues posed. Paragraph 12, rejected, irrelevant and unnecessary. Paragraph 14, adopted as modified, Paragraphs 10 and 11, Recommended Order. Paragraphs 16 and 17, adopted and incorporated in the Preliminary Statement as being background information. Rulings on Respondent's proposed findings of fact: Paragraph 5, adopted as modified, Paragraph 5, Recommended Order. Paragraph 8, rejected as being a recitation of testimony and not proposed findings of fact. Paragraph 17, adopted as modified, Paragraph 10, Recommended Order. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 J. Robert McCormack, Esquire Wiggins & McCormack 3040 Gulf-to-Bay Boulevard, Suite 100 Clearwater, Florida 34619 J. Howard Hinesley, Ed.D., Superintendent, Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
