The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Petitioner is an African-American female. She has worked for Respondent in several positions since January 2000. Beginning on January 21, 2000, Petitioner worked as a student nutrition services assistant at Bonner Elementary School. She resigned on February 8, 2000, because she wished to seek an eight-hour per day position. On February 24, 2000, Petitioner began working as a custodian at Mainland High School. Soon thereafter, Petitioner required light-duty employment due to medical restrictions. She resigned her position on March 17, 2000, because Respondent did not have a position available that would accommodate her light-duty work requirements. On June 27, 2000, Respondent rehired Petitioner as a custodian at Holly Hill Middle School. On August 4, 2000, Petitioner resigned for personal reasons. Thereafter, Petitioner worked for Respondent as a substitute teacher. On April 18, 2002, Petitioner began working as a custodian at Silver Sands Middle School. She subsequently resigned the job due to a conflict with her supervisor. Thereafter, Petitioner worked for Respondent as a substitute custodian at Campbell Middle School. Petitioner never achieved permanent status in any of the above-referenced positions of employment. Instead, she resigned each of them while she was still on probationary status. During the summer of 2002, Respondent assumed responsibility for employment of the health support technicians (HST) that worked in Respondent's school health clinics. Prior to that time, the Volusia County Health Department had been responsible for employing the HST. When Respondent assumed responsibility for the employment of the HST, there were many vacancies in the school clinics. Catherine Ferguson, Respondent's Coordinator of Student Health Services, began interviewing applicants, conducting reference checks, and making hiring recommendations to Respondent's personnel department. Because Petitioner is licensed as a certified nurse's assistant (CNA), she applied for a position as an HST. On or about August 16, 2002, Respondent hired Petitioner to fill one of the vacant HST positions. Each school in the district, with the exception of alternative education sites, has some level of clinical medical or nursing staff. Staffing needs of the clinics are determined by the needs of the student body in each school. The student population may warrant either a full-time or part-time employee. An HST may be assigned to more than one school to fulfill the district's needs. If so, the HST will work three days per week in one school and two days per week in another school. As an HST, Petitioner's primary responsibility was to administer first aid and to dispense medication in school clinics. Her initial assignment was to Samsula Elementary School and Port Orange Elementary School. At all times relevant here, Don Olech was Principal of Samsula Elementary School. Because medication dispensing is an important issue, Mr. Olech took an active role in the clinic operations. He often took the time to personally care for the children, dispensing medicine and taking temperatures. On or about September 13, 2002, Petitioner made inappropriate and unprofessional comments about her sex life in the office at Samsula Elementary School. Petitioner made the comments to a member of the office staff in an area open to parents and students. At all times relevant here, Diane Hammond was Respondent's Nursing Supervisor. In a telephone call on September 13, 2002, Petitioner told Ms. Hammond that Petitioner did not feel welcome at Samsula Elementary School. Petitioner complained that a child with head lice had been sent back to class instead of being sent home. Additionally, Petitioner stated that she was uncomfortable because Mr. Olech was checking on her in the clinic. On September 19, 2002, Ms. Hammond met with Petitioner and Mr. Olech to discuss why Petitioner did not feel welcome at Samsula Elementary School. Petitioner explained that it bothered her for Mr. Olech to visit the clinic so often. On or about September 19, 2002, Ms. Hammond advised Petitioner that she would be assigned to work in the clinics at Port Orange Elementary and New Smyrna Middle School. Ms. Hammond explained that Petitioner was expected to assist in the clinics at other schools when requested to do so. Petitioner accepted the re-assignment. On September 24, 2002, Petitioner began working in the clinic at New Smyrna Middle School with another HST, Charlene Chastain. It was immediately apparent that Petitioner was not willing to do her share of the work. Petitioner was constantly eating or reading a book in the clinic. One of the students at New Smyrna Middle School had recently undergone a hernia operation. When he visited the clinic, Petitioner laughed out loud and made comments in the student's presence about his "nuts." Petitioner's unprofessional conduct in front of the student embarrassed Ms. Chastain. On September 26, 2002, Ms. Hammond visited Petitioner in the clinic at New Smyrna Middle School. Ms. Hammond reviewed Petitioner's responsibilities in general, including professional standards, food in the workplace, and paperwork. On September 27, 2002, Ms. Hammond visited the clinic at Port Orange Elementary School while Petitioner was on sick leave. Ms. Hammond confirmed complaints from Assistant Principal Cindy Fisher regarding the clinic's medication administration record (MAR). For example, there was no emergency care plan for a student with a peanut allergy. Ms. Hammond left a list of record corrections that Petitioner needed to make on the MAR. Petitioner was in the clinic at Port Orange Elementary School on September 30, 2002. During a telephone call to Ms. Hammond, Petitioner agreed to make the changes on the MAR. In the meantime, Principal Gary Marks informed Ms. Ferguson that he did not want Petitioner to return to New Smyrna Middle School due to her unprofessional conduct. Based on Mr. Mark's request and a need for an HST at Osceola Elementary School and Ortona Elementary School, Ms. Ferguson decided to assign Petitioner to work three days a week at Port Orange Elementary School, one day per week at Osceola Elementary School, and one day per week at Ortona Elementary School. On October 14, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner to counsel her on her performance. During the meeting, Ms. Ferguson advised Petitioner regarding appropriate discussions in the workplace, the need to limit telephone use to work-related business, and the prohibition against reading personal literature in the clinic. On October 15, 2002, Ms. Hammond checked the MAR at Port Orange Elementary School. Petitioner had not corrected all of the medication records. There were some remaining omissions in the MAR. Additionally, Petitioner had signed some records which required Ms. Hammond's signature as school nurse. During the visit to Port Orange Elementary School on October 15, 2002, Ms. Hammond noted that Petitioner had posted a lot of religious material on the walls of her desk area. Ms. Hammond left Petitioner a list of things she needed to correct in the clinic. On October 15, 2002, Petitioner worked at Osceola Elementary School for at least one half of a day. She refused to check a class for head lice because she was so busy making personal telephone calls. Additionally, Petitioner failed to properly sign-in medication and sent a student back to class after he vomited instead of sending him home. On October 18, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner again. They explained that Petitioner was being terminated for unsuccessful completion of her probationary period. Since the meeting on October 14, 2002, Ms. Ferguson had received complaints about Petitioner using the phone at Osceola Elementary School for personal business. As Ms. Ferguson continued to advise Petitioner about the reasons for her termination, Petitioner abruptly ended the meeting, using profane and/or vulgar language as she slammed the door on her way out. Respondent approved the recommendation for termination of Petitioner's employment on November 12, 2002.
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 12th day of October, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of October, 2004. COPIES FURNISHED: Cecilia Brown 3630 Caramel Avenue, Apartment 38 Port Orange, Florida 32127 Erin G. Jackson, Esquire Thomas M. Gonzalez, Esquire 501 East Kennedy Boulevard, Suite 14003 Post Office Box 639 Tampa, Florida 36602 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 Lawrence was, at all times pertinent to this case, a teacher with the Orange County Public School System. For about two years, and including the months of March, April and May, 1977, Lawrence's responsibilities included supervision of the work experience program at the Green House, Inc., an alternate school program. The Green House is a joint effort between the Orange County school system and a private community agency designed to provide special training for socially maladjusted children. The work experience program at the Green House gives the students insight into job opportunities through interviews, placement assistance and shadowing (the observation by the students of people actually working on the job). As part of his duties, Lawrence set up job interviews, placement and shadowing trips and then transported the students to their appointments. It would regularly happen that Lawrence and a student would travel together alone in Lawrence's car around the Orange County environs. It was alleged that the improper advances were made during such trips in March, April and May, 1977. However, as previously stated, Lawrence's testimony is accepted as accurate and it is found that no improper advances or contact occurred.
Findings Of Fact Respondent, Henry, was employed as a sixth grade mathematics teacher at Inverness Middle School, Citrus County, Florida, on May 3, 1977. Henry has had some 23 years service as a teacher in Citrus County. On that day Henry was on lunch duty, which required him to maintain control of the students on the play ground after the midday meal. At approximately Noon, Barry Allen Remley and Robert Lee Thomas, both twelve years old and students in grade six at the Inverness Middle School, were fighting on the play ground. A large group of children surrounded the boys, cheering on their particular favorite in the affray. Henry proceeded to the altercation and instructed the boys to stop the fight. Henry's instructions were heard by at least one of the participants in the fight but they were disregarded. Henry pulled off the belt he was wearing, doubled it up and held the buckle in his hand. Henry attempted to pull the boys apart, without success, and at that time began striking the boys with the belt for the purpose of stopping the fight and separating them. The fighting stopped almost immediately at which time Henry ceased using the belt. However, one of the participants, Robert Lee Thomas, turned around and struck Henry. The children were taken by Henry to the principal's office but because none of the school administrative personnel were in the office, discipline was deferred to another time. It is proposed by Petitioner's counsel that it be found as a matter of fact that Robert Lee Thomas received injuries and suffered an acute anxiety reaction because Henry struck him with the belt. However, such a conclusion is unsupported by the evidence and, indeed, is contradicted by the witnesses who testified that the blows were "easy hits", "a tap" or "like your parents will give you a paddling." Another witness, Chris Atkins, testified that, in his judgment, the taps received by the boys with the belt were less than what he got at home. Robert's physician was unable to testify that the anxiety reaction was related to the incident and the very minor injuries sustained by Robert may just as easily have been caused by the fight as the belt. Accordingly, no finding is made that an unreasonable amount of force was used by Henry.
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
Findings Of Fact Edward Pressley, the Respondent, has been a teacher in the Orange County school system for approximately 12 years. Mr. Pressley was serving as a physical education teacher and a remedial teacher for high school students with scholastic difficulty at all times pertinent hereto. In August of 1978, Mr. Pressley had been transferred from the Magnolia School to Cherokee School as a physical education teacher for the 1978-79 school year. On March 28, 1979, Karen Werrenrath, the Principal of Cherokee School and Mr. Pressley's immediate supervisor, determined that he was not at his assigned work location at about the middle of the morning. Mr. Pressley had earlier reported to the Principal that he had discovered the theft of a film projector from the school and that he had reported the theft to a policeman he had observed driving by the school after discovering it missing. Mrs. Werrenrath had inquired about Mr. Pressley's whereabouts because she had received a call from the school system's media center inquiring about the projector which Mr. Pressley had checked out and then reported stolen. The media center required the police department case number which was assigned to the stolen article. Upon calling the police department, Mrs. Werrenrath was informed that the police had no record of any such report, and on March 28, 1979, she therefore informed Mr. Pressley that she had had difficulty in obtaining the number and requested that he obtain it for her. On that date, however, the Respondent left the school campus without permission of the Principal between 10:30 and 11:00 a.m. and did not return to his duty station until approximately 1:15 p.m. Mrs. Werrenrath inquired about his whereabouts during that period of time, and he stated he had gone to the police department and sat on a bench waiting for the police officer to whom he had reported the theft to walk by, and after that he went to lunch. Immediately upon his return to the school campus, however, and during the course of his attempt to explain his previous whereabouts, Mrs. Werrenrath smelled alcohol on Mr. Pressley's breath. Mrs. Werrenrath informed Mr. Pressley that she detected alcohol on his breath, and he offered the explanation that he was taking medication for a halitosis condition. On March 29, 1979, a "workshop" or seminar for physical education teachers in the Orange County school system was held at Meadowbrook Junior High School. Judith Walker is the physical education coordinator for the Orange County public school system and attended that meeting. Ms. Walker is acquainted with the Respondent and saw him at the meeting. Mr. Pressley asked her if he could talk to her, apparently with regard to what he felt was a situation of personal harassment by the school administration. Ms. Walker assented, and the two of them left for lunch together, riding in Mr. Pressley's car. Mr. Pressley was driving. Ms. Walker has known the Respondent for approximately seven years and has observed him on those occasions when he has obviously not been drinking or under the influence of any sort of drug. On those occasions he has been polite and gentlemanly in his conduct, has been able to speak clearly and concisely, and articulate his thoughts reasonably. When she got into Mr. Pressley's car, Ms. Walker noticed a very definite odor of alcoholic beverages. As they drove to a local fast food restaurant, Ms. Walker observed that Mr. Pressley had difficulty controlling the car. He was unable to stay in his lane and was "weaving" from the center line to the side of the road and drove in the wrong way to a drive-in window of the fast food restaurant. In attempting to back out of the drive-in lane, he ran into a post and ultimately hit another post with his car before leaving the restaurant parking area. Ms. Walker also established that the Respondent appeared disoriented and unable to locate the familiar restaurant without her assistance, spoke with slurred speech, and articulated his thoughts in an erratic and disorganized manner. He was unable to conduct a conversation about a subject in a clear and concise manner. Ms. Walker has frequently been in contact with people who have been drinking alcoholic beverages with her knowledge and has seen people in an intoxicated condition. Based upon her experience in observing people in that condition and her observations of Mr. Pressley while she was with him during the school day on March 30, 1979, she felt he was under the influence of alcohol during that time. Shortly after this episode, Ms. Walker reported the incident to the Superintendent of Schools for Orange County at that time, Mr. L. Linton Deck, Jr. She also, shortly thereafter, reduced her observations and impressions regarding the incident to writing in a memorandum to the Superintendent dated April 17, 1979. (Petitioner's Exhibit 3). During the course of their conversation, while Ms. Walker was riding in Mr. Pressley's car on March 30, he informed her that he had been taking pain medication for a back injury and that it was his practice to take beer with his pain pills in order to hasten the comforting effects. Ultimately, in a letter dated April 24, 1979, the Superintendent of public schools in Orange County charged Mr. Pressley with misconduct in office based upon the observations of the two above witnesses that he had been drinking or had been under the influence of alcohol during duty hours. (Petitioner's Exhibit 1). Mr. Pressley retained counsel at that time and, after various negotiations between the Petitioner and the Respondent, an agreement was worked out between counsel for the School Board and Mr. Pressley such that no final disciplinary action was taken with respect to those charges, with the express understanding that Mr. Pressley would enroll in an alcoholic rehabilitation program and would be removed from continuing contract status and placed on annual contract status henceforth. Mr. Pressley was also transferred to Evans High School for employment. Petitioner's Exhibit 1, stipulated into evidence, reveals that the Superintendent's action in deferring taking any formal action against Mr. Pressley on the basis of the charges was purely a result of this agreement. The Respondent expressly agreed, as the letter from his counsel dated May 4, 1979, contained in this exhibit establishes, that the School Board's forbearance in pressing formal action on the charges would not prejudice the School Board in any way with regard to reinstituting the charges at a later time should Mr. Pressley's subsequent conduct justify resumption of their prosecution. Accordingly, as a result of that agreement, Mr. Pressley was allowed to return to the Orange County school system as a teacher on annual contract and was transferred to Evans High School for the 1979-80 school year as a teacher of remedial classes for students who were having scholastic difficulties. Magnolia School is a special education center in the Orange County school system. The Respondent was employed at the Magnolia School some years prior to 1980. On Friday, May 23, 1980, while Mr. Pressley was on personal leave from his job at Evans High School, he appeared upon the grounds of Magnolia School. Jessie D. Smith is a special education teacher who was acquainted with Mr. Pressley from the time he was employed at Magnolia School. On this particular day, Ms. Smith was conducting a private conference with Mrs. Margaret Murray. Mrs. Murray had a son enrolled in the untrainable mentally retarded program at Magnolia Center under Ms. Smith's supervision. This was a private conference between Mrs. Murray and Ms. Smith regarding Mrs. Murray's son's progress in the program and his prognosis for the future. Mr. Pressley had nothing to do with the education of Mrs. Murray's child and had no business being in attendance at the private conference between Ms. Smith and Mrs. Murray. Mr. Pressley had no official business to conduct which justified his presence on the grounds of Magnolia School on that or any other day. The Respondent was not invited by either of the participants in this private conference to participate in it, and indeed Mrs. Murray had never seen Mr. Pressley before he walked into the room, interrupting their conference. Mr. Pressley did not know Mrs. Murray and, although he was not invited to participate in the conference, interrupted it by taking a seat in close proximity to Ms. Smith and Mrs. Murray and abruptly started questioning Mrs. Murray. The Respondent asked Mrs. Murray impertinent and inappropriate questions regarding her marital status, whether she was able to care for her child, and whether she had a boy friend. He insinuated that he felt Mrs. Murray was wasting the school's time by requesting and conducting this conference regarding her child and then declared if he were in her position he would remove her child from school immediately. Ms. Smith naturally became quite irritated with Mr. Pressley's shockingly inappropriate conduct and escorted Mrs. Murray into the next classroom in order to attempt to finish their conference without further interference by the Respondent. Ms. Smith was unable to say whether or not Mr. Pressley had been indulging in alcoholic beverages on the day in question, but she stated, with a view toward her long experience with the Respondent's personality and behavior, that he definitely was not behaving and conducting himself in a normal manner during her observations of him on May 23, 1980. Ms. Smith was shocked and embarrassed that Mr. Pressley as a professional colleague and employee of the same school system would conduct himself in that manner in the presence of the parent of one of her students. When the Respondent first sat down at the conference between Ms. Smith and Mrs. Murray, Mrs. Murray believed him to be a teacher, but when he began talking he was mumbling and slurring his words and speaking in an incoherent manner which led Mrs. Murray to believe that he was in some way retarded. After hearing him converse in that fashion for awhile, she then formed the opinion that he was simply drunk. Ms. Phyllis Albert was employed as a teacher's aide at Magnolia School and was present in the room on May 23, 1980, when Mr. Pressley entered it prior to Ms. Smith and Mrs. Murray coming into the room. Ms. Albert has known the Respondent for a substantial period of time and described him as quiet, reserved and somber. On the day in question, however, Ms. Albert established that Mr. Pressley was acting quite differently from his normal behavior in that he was acting and speaking very exuberantly and in general behaving in an outgoing, extroverted fashion. When the Respondent shook Ms. Albert's hand, she detected a definite odor of alcoholic beverages on the Respondent's breath. She recalled that her impression at the time was that he was "really bombed out of his mind." Olla Evans, the Assistant Principal at Evans High School, observed the Respondent on two occasions between September and December of 1980, when he brought students to her office for disciplinary purposes. On each of these occasions she detected the odor of alcoholic beverages on the Respondent and on the Respondent's breath when he was in her office. On one of these occasions, the odor was so strong that she had to open the door to clear the smell out of her office. On this occasion she also observed that the Respondent's eyes were markedly red. Witness Evans also established that on repetitive occasions (five or six), during the fall of 1980, the Respondent was late arriving for work and that she had to call substitute teachers to take his classes for him until he arrived. Catherine Melton was a regular, continuing substitute teacher for Mr. Pressley's classes at Evans High School in the fall of 1980. She was called to substitute for Pressley's classes at least three or four times during the course of the fall school term. She substituted for his second period class in December on the day before the Christmas holidays commenced. At approximately 8:30 that morning the Respondent appeared, looking in the window of the classroom door. She opened the door and asked him if he was coming into the class at that time. He did not respond but walked into the classroom and appeared confused and disoriented. She observed the Respondent in this disoriented state for several minutes, during which time he did not acknowledge her presence or respond to her in any way. On another occasion, in December of 1980, the Respondent was escorted from the school by two police officers. On that occasion the Respondent missed the entire afternoon of that working day without his absence being excused. He was thus unable to perform his duties as a teacher that afternoon and did not obtain leave approval for that time. On January 7, 1981, Juana Senter, who is an Assistant Principal at Evans High School, reported to John Pitts, the Principal, that Mr. Pressley was late again and had not called in to report that he would be late nor to seek an excuse for his absence. She reported this to the Principal at approximately 8:15 or 8:20 a.m. The official starting time for teachers at Evans High School at all times pertinent hereto was 7:00 a.m. The students then report at 7:15 a.m., and the tardy bell for students and teachers is rung at 7:20 a.m. Inasmuch as Mr. Pressley had already been late reporting for work five or six times during the fall of 1980, and now once again on January 7, 1981, Ms. Senter suggested to the Principal that "something should be done about it." Mr. Pitts directed Ms. Senter to secure a substitute teacher for Mr. Pressley's classes and direct Mr. Pressley to report to his office when he arrived at school. The Respondent arrived at school at approximately 8:30 a.m. on that day and reported to Mr. Pitts' office. Mr. Pitts was taken aback at the Respondent's appearance. The Respondent was untidy, with wrinkled, rumpled clothes, and Mr. Pitts detected the strong odor of alcoholic beverages on or about the Respondent's person as soon as the Respondent entered his office. Mr. Pitts described the Respondent as "either getting drunk or doing some drinking, or coming off a real tough night." The witness then established that he had had substantial experience in the Navy, and since, around people who have been drinking in various amounts, and described his observations as to how people act when under the influence of alcohol. In his experience, people who have been drinking late into the night or early in the morning usually carry evidence of the odor of alcoholic beverages on their breath or on their clothing and generally act, move or behave in an unsteady manner. The witness established that the Respondent acted in this manner on this occasion and that his presence was accompanied by a strong odor of alcoholic beverages. There was no question in this witness' mind that the Respondent had been drinking shortly before coming into his office. Mr. Pitts therefore was not desirous of the Respondent coming in contact with the students while he was in that condition. He therefore directed that Mr. Pressley return home and "get himself straightened out" and report back to Mr. Pitts for a conference about his problem before returning to the classroom to conduct business with his students. Mr. Pitts was aware that the Respondent was enrolled in an alcoholic rehabilitation program, and he described himself and the school administration as making every effort to be supportive of the Respondent in his rehabilitation effort. The Respondent failed to return to the school that day and did not come in for a conference with Mr. Pitts, but rather returned the next day to the regular conduct of his classes without further discussing the incident with Mr. Pitts. The Respondent has been on medication of one type or another since January of 1979. He has had prescribed for him and has been taking various types of pain and tranquilizer medications and muscle relaxants such as Fiorinal No. 3, Talwin, Vicodin, Tylox, Librium and Valium. The Respondent contends he has never taken an overdose of any of his various types of medication, but acknowledges that he has at times taken medication in conjunction with alcoholic beverages in order to speed up the comforting effects of the medication. Although the Respondent stated at one point that he had had no difficulties occasioned by mixing his medications with alcoholic beverages, he has admitted that he was convicted of driving while intoxicated as a result of mixing medication and alcohol on two occasions: January 22, 1979; and again on March 7, 1980. Parenthetically, it should be noted that portions of the arrest record for the Respondent's arrests for Driving While Intoxicated were admitted for the narrow reason of demonstrating that he was aware of the effects of consuming alcohol and his medication contemporaneously prior to his engaging in some of the conduct described in the Findings of Fact above. In any event, Mr. Pressley has admitted that on those two occasions he was mixing medications with alcoholic beverages with the convictions resulting. Mr. Pressley, in testifying concerning the episode occurring at Magnolia School, stated that he had been taking medication that day prior to going to the school. Later in his testimony he recanted and testified that he could not remember if he had been taking medication, and he denied drinking that day. The Respondent's testimony is repeatedly characterized by the statement, "I don't recall," or "I don't remember." He recalls being in the room with Ms. Smith and another person at Magnolia School, but does not recall who that person was, nor does he remember participating in the meeting with Mrs. Murray and Ms. Smith. He claims not to remember anything he asked Mrs. Murray. Mr. Pressley also maintains he cannot recall any of the details of the episode at Magnolia School, although he maintains he definitely does recall that he had not been drinking that day. The undersigned finds the Respondent's testimony and demeanor on the witness stand characterized by poor memory or evasiveness or both.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, and the pleadings and arguments of counsel, it is RECOMMENDED: That a final order be entered by the School Board of Orange County, Florida, dismissing the Respondent as an instructional employee of the School Board of Orange County, Florida. RECOMMENDED this 27th day of July, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1981. COPIES FURNISHED: John W. Bower, Esquire Bowen and King 217 North Eola Drive Orlando, Florida 32802 Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deny (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $200.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this ! 3 day of Decorber- , 2011. Agextcy for Health Care Administration Filed December 15, 2011 3:45 PM Division of Administrative Hearings NOTICE OF RIGHT TO JUDICIAL REVIEW. A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this / lay of » 2011. Richard Shoop, Agency C Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Roger Bell, Unit Manager Facilities Intake Unit Health Care Clinic Unit Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail) Finance and Accounting Johnson Medical Center Corp., Revenue Management Unit c/o Stuart H. Abramson, Counsel for Petitioner Agency for Health Care Administration 10300 Sunset Drive, Suite 319 (Interoffice Mail) Miami, Florida 33173 (U.S. Mail) Jessica E. Varn Sharon K. Jones, Assistant General Counsel Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail)
