The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's race.
Findings Of Fact Ms. Gainey is an African-American and is currently unemployed. She has a tenth-grade education and at the time of the hearing was 31 years of age. Winn Dixie is a corporation engaged in the grocery business. It is headquartered in Jacksonville, Florida, and has stores throughout the southeastern United States. Winn Dixie is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Beginning in 1996, Ms. Gainey began employment more or less continuously in Winn Dixie stores. In 2005, she was working in Winn Dixie's Port Orange Store. She began her Winn Dixie employment by working as an overnight stocking clerk and then worked in the bakery department. In time she became a general merchandise stocking clerk. Eventually she was promoted to cashier. Subsequently, she was promoted to front-end manager and her responsibilities increased. She was also asked to be an in-store trainer, and she accepted this additional duty. She trained newly hired cashiers and baggers. Ms. Gainey did an excellent job as front-end manager and was such a proficient in-store trainer, that she was asked on occasion to train personnel at other Winn Dixie stores. She was a popular manager. Both her peers and supervisors believed her to be a good employee. At least one Winn Dixie customer testified that at the Port Orange store she was, "Miss Winn Dixie." Training at Winn Dixie had been accomplished at individual stores prior to 2005. Accordingly, there was no standardization. Management at Winn Dixie determined that training should be accomplished regionally so that uniformity could be established. Winn Dixie thereafter established a pilot program in the Jacksonville region, which included Ms. Gainey's store, that would develop specialized district trainers who would be responsible for training all new hires. Winn Dixie issued a "job posting notice" dated March 23, 2005, through March 25, 2005, announcing the job title of "District Trainer 'New Hire Orientation & Cashier Training.'" The notice stated that the position would be responsible for conducting, "training sessions to support the delivery and dissemination of company-wide operational information, job-specific requirements, performance standards, human resource programs and policies, as well as pertinent safety program guidelines." The skills set for an in-store trainer were not transferable to the district trainer position. The district trainer position being contemplated was much more demanding and required intensive training. The position of district trainer would result in a promotion and an increase in salary for Ms. Gainey if she attained it. Consequently, she applied for it. Others did also. In the region in which Ms. Gainey was working, 50 people applied for 21 available positions. Ms. Gainey was selected for an interview. Winn Dixie managerial employees Catherine Cole, Gary Lloyd, and Mathew Toussaint interviewed Ms. Gainey and all of the other applicants. Sixteen applicants were chosen for training as district trainers. Five were black and 11 were white or Hispanic. One person was selected from each district. Ms. Gainey was not selected. Nevertheless, Ms. Cole recommended that Ms. Gainey attend training, and Ms. Cole and Mr. Toussaint overruled the recommendation of the interview board and determined she should attend training. This occurred because of the recommendation of her co-manager, who asserted that her presentation skills were "awesome" and because no one else from her district had applied. Ms. Gainey was informed that she was to participate in the training. Despite Ms. Gainey's belief to the contrary, she was never given a job as district trainer. Rather, she was informed that upon successful completion of training she might be placed in that position. Regrettably, and erroneously believing she had received a promotion, Ms. Gainey bade a tearful farewell to her fellow workers. They threw a going away party for her. The training commenced in Orlando, Florida, on Monday, May 9, 2005, and was scheduled for five days. During classes, Ms. Gainey did not absorb the information provided to her, gave inappropriate responses to questions, did not follow instructions, demonstrated that she could not follow along in the training book, and asked questions not related to the material. Her efforts were such as to evoke ridicule from her fellow students. Her demonstrated deficiencies resulted in a determination that she was unsuitable to be a district trainer. Of the six African-Americans that underwent training, all but Ms. Gainey, were successful. Of the ten whites, all were successful. The one Hispanic was successful. Ms. Gainey departed the training site convinced that she had successfully completed the course. However, a few days later she was informed by Ms. Cole, Mr. Toussaint, and John Koulouris that she had failed the course and would not be promoted. The decision not to promote her was solely based on her performance at the training and was not in any way based on her race. She was a valuable Winn Dixie employee and management wanted her to succeed. Winn Dixie was committed to working with her so that she could develop her skills and eventually advance. She was informed of this. Ms. Gainey, upon learning of her failure, became very emotional. She was offered an opportunity to return to her old job or, should she choose, a job anywhere in the district. Ms. Gainey refused to return to the Port Orange store because she did not want her co-workers to learn of her failure. Ms. Gainey asserted that she wanted to work in Gainesville, so she was assigned to Store 160 in Gainesville. Subsequently, she learned that Store 160 was slated to be closed, and she was allowed to return to her old store. However, she went on sick leave instead and never returned to work for Winn Dixie. She was terminated on May 13, 2006, due to her uncommunicative absence. The job to which Ms. Gainey aspired was never filled. Winn Dixie, within a matter of months, determined that the district trainer plan was not sound and terminated the entire program. Winn Dixie has a strong equal opportunity policy. No evidence was adduced during the course of the hearing that indicated that any action taken in regard to Ms. Gainey was based on discrimination. To the contrary, the evidence clearly demonstrated that Ms. Gainey was not placed in the position she desired because she was not qualified.
Recommendation Based upon the 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 4th day of June, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Princess Catrice Gainey Post Office Box 290264 Port Orange, Florida 32129 Tishia Green, Esquire Constangy, Brooks & Smith, LLC 100 North Tampa Street, Suite 3350 Post Office Box 1840 Tampa, Florida 33601 Princess C. Gainey 500 Southeast 18th Street Apartment 67 Gainesville, Florida 32641 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.
The Issue The issue to be determined is whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes (2007), and if so, what remedy should be ordered?
Findings Of Fact Petitioner, Maurice Allen (Allen), is an African- American male who was employed by Respondent, Gold's Gym (Gold's) as a personal trainer from October 2005 to October 22, 2007. Allen is also currently a senior at Florida A&M University, majoring in biochemistry and business. Respondent is a personal fitness gym with three locations or "clubs" and one affiliate club in the Tallahassee area. The three clubs are Apalachee Parkway (the Downtown Club), Capital Circle Northeast (North Club), and Pensacola Street, with the affiliate club, Women's World, on Thomasville Road. Gold's is an employer under the Florida Civil Rights Act, Chapter 760, Florida Statutes. Allen was hired by Gold's as a personal trainer, whose primary duties were to perform personal fitness assessments with body fat measurements and blood pressure readings, for club members; to assist members in establishing fitness goals; and to assist in workout sessions with the members for the achievement of these goals. The parties did not dispute that Allen was qualified to perform these duties, and was one of the highest producing trainers on Gold's staff. Gold's has a discrimination and harassment policy applicable to all of its locations. The policy, which has been in effect during the entirety of the period relevant to this proceeding, is provided to every employee at the time of employment. The policy is also included in Gold's employee handbook, a copy of which is kept at each facility. The discrimination and harassment policy provides that an employee with a complaint of harassment or discrimination must bring it to the attention of his or her supervisor, the owner, Jim Burtoft, and Donna Berryman, the human resources director. The policy also directs that all complaints should be in writing. Allen signed acknowledgment forms, attesting to having received the discrimination and harassment policy. Allen was initially assigned to the Downtown Club and later reassigned to the North Club. Allen's immediate supervisor was Tim Kane, the North Club Athletic Director. Kane's immediate supervisor was Jarred Duncan, the General Manager, who reported directly to Jim Burtoft, the owner. Kane, Duncan, and Burtoft are all white. Allen's Petition for Relief deals with three basic allegations: 1) that there was a hostile work environment, including racial slurs by other trainers and supervisors, and an uneven distribution of walk-in clients based upon the race of both the trainers and the clients; 2) that he was terminated based upon his race, when the white male involved in an altercation immediately following Allen's termination was not fired; and 3) that he was retaliated against for speaking out about the disparate assignment of clients. Only the first two assertions were contained in the complaint that was investigated by the Commission. Allen complains that his direct supervisor, Timothy Kane, and James Burgin, the athletic director of the Downtown Club, made what he considered to be racist remarks. For example, Kane told him, "you look like a person who will wear a long chain" (which Allen interpreted as referring to a rapper), and Duncan referred to Allen and another African-American trainer on one occasion as "the African Connection" and commented, "I know how much you brothers like barbeque," when Gold's provided food from "Famous Dave's" Barbeque one afternoon. He also complained that Sally Burgin, another Gold's employee and James Burgin's daughter, cursed and yelled at him on one occasion and was deliberately rude to another African-American trainer on a separate occasion. After Mr. Kane's comments, Allen complained to Jarred Duncan. There is no evidence that any further racist comments were made about or to Allen by Kane. Allen told Duncan he was offended by Duncan's comments, and after the barbeque comment, attempted to call Mr. Burtoft about them. However, when he left messages for Mr. Burtoft, he did not indicate in the message that he was complaining about racial comments made by supervisors. He simply stated that he wanted to talk to him about a "very important matter." There was no evidence that Sally Burgin's actions were motivated by racism as opposed to being simply rude. Allen admitted that he never filed a written complaint with the Human Resource Officer, as contemplated by Gold's policy. Personal trainers received clients one of two ways: either by assignment from Gold's management or by acquiring clients on their own. Clients assigned by Gold's were assigned based on when the client came in and when the trainers were listed as being available. All clients were required to be Gold's club members, and payment for personal training came through Gold's. Allen believed that he and other African-American trainers were not receiving as many walk-in clients through Gold's, and were receiving fewer white clients than their white counterparts. However, no documentation was presented to support this "feeling." Allen voiced his opinion on the matter during a staff meeting, and was told by management that the assignment procedure would be reviewed. Allen also believed that he was treated differently in terms of his use of the facilities. On one occasion, Allen was working with a client at the Downtown Gold's location. After finishing with his client and waiting for the next client to arrive, he engaged in a personal workout. Allen began his personal workout during the lunch hour, or a time considered to be during "peak hours." Burgin saw him working out on the first floor of the club and directed him to stop because staff was not allowed to work out during peak hours. At approximately the same time, a white Gold's employee, Chris Stewart, was working out on the second level of the club. Allen saw him and told Burgin that Stewart was working out as well. Unbeknownst to Allen, Stewart received a written reprimand for working out during peak hours. Allen received only a verbal warning. In the fall of 2007, Allen had a female client who did not appear for all of her workouts. The most credible evidence presented is that the problem at the heart of her "no shows" was a scheduling problem, although there may also have been a misunderstanding between the client and Allen about the difference between pushing a client hard to perform and bullying. Allen was out of the gym for a week, due to an illness in the family, and during that time, the client was reassigned to another trainer. Gold's management indicated that the client asked to be transferred because Allen was sexually harassing her. However, this reason for the transfer was never explained to Allen, and there is no documentation to support such an allegation. Further, no notation was ever placed in Allen's file regarding what could only be described as a serious complaint. The assertion that Allen was engaging in sexual harassment and that the client made such a complaint is not credible. When Allen returned to work the week of October 15, 2007, he realized that he was not being paid for workouts attributable to this female client. When he asked Kane about it, he was told to check with Duncan. When he asked Duncan, he was told to check with Kane. On Wednesday, October 17, 2007, Allen was training a young lady in the early hours of the morning. Allen passed by Kane, who was training another client, and when he did, he asked if he was going to get paid for the previous sessions. Kane reacted negatively to the question, and became angry. While both men were in the lobby area of the gym, an altercation ensued between Kane and Allen, and the police were called. While the police report chronicles widely differing accounts of the event, those accounts are clearly hearsay and none of the people interviewed testified in this proceeding except Petitioner. The only competent evidence presented indicates that Kane was clearly the aggressor, a conclusion that is corroborated by the police report, and that during the altercation, he told Allen that he was fired. Kane was subsequently charged with assault and battery as a result of the altercation. It is unclear what, if any, disciplinary action was taken by Gold's against Kane. No charges were brought against Allen. After the police were called, Jim Burtoft arrived at the gym. He did not witness the altercation between Kane and Allen. He told Allen to go home for the rest of the week, and they would talk later. Subsequently, Allen was told to attend a meeting with Mr. Burtoft on Monday, October 22, 2007, which he did. The meeting consisted of Mr. Burtoft, Allen, and Donna Berryman. At that time, Allen was advised that he was being terminated from his position at Gold's. Allen was requested to sign a personal action form, which stated: After reviewing his employee file, Gold's Gym management stands by Mr. Tim Kane's decision to dismiss Mr. Allen. The termination is for insubordination based on the facts contained in Mr. Allen's personnel file and is no way influenced by the incidents following his dismissal by Mr. Kane (see attached sheets). (Emphasis supplied.) Allen asked to be able to see his personnel file so that he could understand the reason for his termination. He was told that his file was not available. There is no insubordination documented in Allen's personnel file. There are only two documents that could be considered disciplinary actions included in the file. Personal action forms used by Gold's Gym provide for a signature by the recipient, as well as signatures by the manager and, if necessary, a witness. The two disciplinary action forms in his file do not contain Allen's signature, and he denies ever seeing either form before being terminated. His testimony is credited. The first form is dated May 8, 2007, and indicates that it is a final warning for training a client out of uniform. The form indicates that failure to follow procedure in the future will result in termination. Under "remarks," the form indicates that "employee refused to sign." As stated above, it is found that Allen never saw this form. He does acknowledge, however, that there were times when he trained "out of uniform" because he sought and received permission to do so when, for example, he took clients running off the premises. He was supposed to return to uniform once he returned to the gym. The second form is dated September 14, 2007, more than a month before the altercation. The form indicates that it was issued for using an unauthorized price sheet. While there is a purported signature on the line for an employee's signature, it does not bear any resemblance to the other signatures by Allen contained in the file. Allen acknowledged that there was an issue dealing with use of a proper price sheet, but did not recall receiving any written disciplinary action. Neither of these personal action forms mention anything with regard to insubordination, and neither was generated near the time of Allen's termination. Mr. Burtoft's statement that the termination had nothing to do with the altercation with Kane is not credible, and is rejected. Also contained in Allen's personnel file at the time of hearing is a lengthy memorandum purportedly dated December 29, 2006, that states at the top, "This attached Statement is a documented part of the Personal Action Form Gold's Gym Tallahassee, Florida, dated December 29, 2006 concerning Personal Trainer, Maurice Allen." The document lists certain concerns with Allen's performance, dealing with his appearance and demeanor, interactions with co-workers, and issues regarding paperwork for clients. The December 29, 2006, memo is among the documents that counsel for Gold's represented were added to Allen's personnel file after his termination, as part of the FCHR investigation into Allen's complaint of discrimination. There is nothing in the memorandum that indicates Allen was ever provided a copy of it. No explanation was given as to why such a significant memo would be placed in Allen's file, not at the time it was supposedly generated, but after an investigation related to his termination was initiated. Nor was any reasonable explanation given as to why there is nothing in the file immediately following the purported generation of the memo, to indicate that there was any sort of follow-up action. Whether or not the December 29, 2006, memo was actually generated at that time, it was not in Allen's personnel file at the time he was fired. Mr. Burtoft indicated at hearing that Allen would be eligible for rehire six months after his termination, and that he either told him so or "never said he wasn't available for rehire." There is nothing on the notice of his termination that indicates Allen would be eligible for rehire. Based upon the totality of the credible, admissible evidence presented, Allen was not terminated based upon the documentation in his file. He was terminated because of the altercation with his supervisor, Timothy Kane, a long-time employee at the gym who had known Mr. Burtoft for 15 years. Subsequent to Allen's termination, Mr. Kane was involved in another altercation with Ali Alawieh, an employee of Gold's Gym, in the parking lot of the North location. This employee was a personal trainer, like Allen, and was also Kane's roommate. Alawieh, who is of a different ethnic background than both Kane and Allen, was given the option of transferring to another Gold's location. Allen was not given that option. Gold's did not consider this incident to be employment related because it occurred in the parking lot (which Gold's does not own) as opposed to on the premises, and because of the personal relationship between Kane and Alawieh. It is doubtful that patrons of the gym observing the altercation would have recognized or appreciated the difference. Kane's employment was terminated subsequent to both incidents for reasons that appear to be unrelated to either incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 14th day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of December, 2009. COPIES FURNISHED: Carolyn Davis Cummings, Esquire Carolyn Davis Cummings, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Deborah Stephens Minnis, Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether The Unlimited Path, Inc. (“The Unlimited Path”) committed an unlawful employment practice against Constance K. Gatewood by denying her a reasonable accommodation and/or by demoting her from her position as Program Director at Jackson Correctional Institution.
Findings Of Fact The Parties The Unlimited Path contracts with the Florida Department of Corrections (“DOC”) to provide residential substance abuse counseling and re-entry services to inmates on prison grounds. The Unlimited Path has been operating since 1994 when it had 30 to 50 employees. Today, The Unlimited Path has 280 employees and operates at 20 to 24 institutions within Florida. DOC is The Unlimited Path’s primary source of revenue. If The Unlimited Path is not satisfying its contractual obligations, then DOC can terminate the contract. Therefore, it is imperative that The Unlimited Path satisfy its contractual obligations. In order to ensure that The Unlimited Path is satisfying those obligations, DOC and the Department of Children and Families (“DCF”) conduct periodic reviews of The Unlimited Path’s substance abuse programs. The contract between DOC and The Unlimited Path is comprehensive. For example, one provision requires that The Unlimited Path comply with the Americans with Disabilities Act (“the ADA”). Another provision empowers DOC to prohibit The Unlimited Path from employing a particular person at a DOC facility. Bertrand Randolph is the President of The Unlimited Path and performs all of the functions typically associated with a chief executive officer of a corporation. Mr. Randolph’s wife, Sheila Randolph, is the Executive Director of The Unlimited Path, and her duties include overseeing the operations and policies of the entire corporation. Ms. Randolph also writes The Unlimited Path’s bids. Ms. Gatewood has worked in prison-based substance abuse treatment programs since 2005. She is a master’s level certified addiction professional or a “CAP”. As a CAP, Ms. Gatewood is qualified to operate a substance abuse program. The Unlimited Path hired Ms. Gatewood on September 20, 2011, to work as a clinical supervisor at the Walton Correctional Institution (“Walton CI”). One piece of documentation associated with Ms. Gatewood’s hiring asked her to disclose whether she suffers from various medical conditions such as epilepsy, diabetes, or heart disease. With regard to a category on that document entitled “other,” Ms. Gatewood noted that she experiences “[a]llergies to certain foods, chemicals, perfumes, other odors plus dyes.” However, she responded negatively to a question asking if she had ever “received a disability rating or had one assigned . . . by an insurance company or state/federal agency.” On an “Emergency Contact Information Sheet,” Ms. Gatewood disclosed that she is allergic to several foods and substances such as aspirin, sulfides, chemicals, perfumes, colognes, seafood, pork, strawberries, nuts, chocolate, red dye, and yellow dye. Ms. Gatewood also noted on the aforementioned form that she has asthma and is sensitive to extreme hot or cold conditions. However, the disclosures described above did not present a complete picture regarding the severity of Ms. Gatewood’s allergies. Specifically, those disclosures did not indicate that Ms. Gatewood’s allergies could be life- threatening. A letter dated October 7, 2003, from Dr. Mark H. Kalenian of Alabama Asthma & Allergy, P.C. presented a comprehensive description of Ms. Gatewood’s allergies and described how they could be life-threatening: The above referenced patient is a 52 year old black female initially seen on 9/13/2001 and last seen on 4/1/2003. Her diagnoses include allergic rhinitis, asthma, dermographic Urticaria, Urticaria/angioedema, and multiple drug allergies. She breaks out in hives and can get facial swelling when ingesting MSG, scupper dines, vanilla ice cream, red #40 and yellow #5 dyes, shellfish, and Advil-related anti-inflammatory drugs. Her main problems that may affect her work are smoke, chemicals and/or perfumes which trigger sinus allergy type symptoms, lip swelling, dizziness, shortness of breath, and anaphylaxis (a potentially life- threatening reaction). These potential exposures to smoke, cologne, perfume, scents or chemicals, extreme hot/cold air, polluted air at work whether in the air or on co-workers could potentially trigger a severe allergic, asthmatic or anaphylactic reaction, which could send her to the emergency room, close off her airway and drop her blood pressure and be potentially life threatening. She should work in a clean air environment, away from co-workers who smoke or wear scented lotions or perfumes, away from polluted air and away from extremes of hot or cold. Avoidance is the best treatment for her, although she needs to continue on all asthma and allergy medications. Please consider implementing a policy of no perfume/cologne or strong scents worn on trainees, and people should smoke outside. As discussed in more detail below, Ms. Gatewood did not share the above-referenced letter with The Unlimited Path until April of 2015.2/ Ms. Gatewood’s Tenure at The Unlimited Path Prior to July 2015 During her tenure with The Unlimited Path, Ms. Gatewood has worked as the Program Director of substance abuse rehabilitation programs at three different DOC facilities: Lowell CI, Jackson CI, and the Northwest Florida Regional Annex. At The Unlimited Path, a program director is responsible for all aspects of a treatment program at a DOC facility. Ms. Gatewood’s allergies became well-known to those who worked around her. Any sort of strong scent presented a problem. For example, Ms. Gatewood’s co-workers could not heat fish in a microwave because of the resulting aroma, and they could not use hand soap. There is no dispute that The Unlimited Path’s management (prior to November of 2014) properly addressed any complaints made by Ms. Gatewood. According to Ms. Randolph, “any time there was a concern, we would address it with the employee or the site by holding a staff [meeting], requesting that people refrain from heavily scented products. I mean, we – we even allowed for there to be some cleaning schedule changes at sites to accommodate her allergies. So we tried very hard to respect the fact that she was sensitive.” The Unlimited Path also allowed Ms. Gatewood to set the standard for soap in the bathrooms. Nevertheless, Ms. Gatewood’s allergies were an issue throughout her tenure at The Unlimited Path. As explained below, Ms. Gatewood cites three instances in which The Unlimited Path allegedly ignored requests from her for a reasonable accommodation within the meaning of the ADA. In other words, Ms. Gatewood alleges that The Unlimited Path began ignoring her requests for a reasonable accommodation in November of 2014. The Unlimited Path began operating a substance abuse rehabilitation program at Jackson CI in January of 2014, with Ms. Gatewood as the Program Director. In approximately November of 2014, counselors under Ms. Gatewood’s supervision were wearing scented products, and the aromas from those scented products were being transferred to documents that Ms. Gatewood had to review in her capacity as Program Director. As a result, Ms. Gatewood experienced allergic reactions and began leaving documents in filing cabinets overnight in order for the scent to dissipate. On November 5, 2014, Ms. Gatewood addressed the following e-mail to Sheila Randolph: This message is to seek advice regarding employees that continue to wear scented products in the workplace which is creating complications because the paperwork is extremely saturated with perfume/cologne/aftershave/lotion scents so strong that I am experiencing allergic reactions signing the paperwork. I have addressed this issue in staff meeting[s], however, it seems not to matter with certain staff. Ms. Russell’s entire caseload charts were so strongly scented today, I asked Ms. Dandridge to place them in the file cabinet because my system could not tolerate the smell nor could I continue signing off on the individual sessions. I became very ill and had to go outside to get fresh air in order to breathe. Also, I know you want me to provide leadership training to Mr. Bell, however, the scented aftershave and hand product he wears makes it extremely difficult for me to interact in close proximity with him, and sign his paperwork. Today, I mentioned to him that I was experiencing an allergic reaction and my eyes were stinging so badly I could not sign his chart. Later I overhead him say “if someone is that sensitive this is not the environment to work in.” At this point, I am unable to perform the duties of my job due to these strong scents that I am affected by smelling and touch. There is a DOC policy that addresses strong scents in the workplace. I don’t want the closed charts to arrive in Tallahassee smelling like a perfume factory, and lastly these scents are very attractive to the inmates. On April 9, 2015, Ms. Gatewood addressed the following e-mail to her immediate supervisor, Amie Bishop: At your earliest convenience I need to speak with you regarding two issues that involve Counselor Karlicia Rogers. Scented products in the workplace that has been address[ed] in the past. She is now wearing heavily scented hand products when completing documentation. Documentation deficiencies regarding three charts that were not countersigned when the client was enrolled into the program, and correcting my documentation in the chart. Later that day, Ms. Gatewood transmitted another e-mail to Ms. Bishop and copied Sheila Randolph. Within the e-mail, Ms. Gatewood expressed an issue regarding Mr. Bell. However, she also referred to the ADA: Yesterday, after Staff Meeting, I considered Mr. Bell’s behavior inappropriate. In front of staff members, he made a comment regarding Ms. Chavers who was not present in the room at the time. He said, “If you are that sensitive you don’t need to be working here.” This was regarding an incident earlier during staff meeting when Ms. Rogers reported information she overheard from Ms. Chavers’ group and (Ms. Rogers) said she wanted clarification. Ms. Chavers thought Ms. Rogers was targeting her and told her so during the meeting. Ms. Rogers explained that she was not targeting her, and after numerous attempts to convince her she was not being targeted, Ms. Chavers excused herself and left the meeting. It was [about] time to go, I went to look for Ms. Chavers, and did not feel the need to keep Mr. Bell overtime to address his behavior. However, this morning, I advised Mr. Bell that I overheard the remark and wanted to address it with him. I mentioned that in the past I overheard him make the same remark about me when he thought I was out of the room (re: scented products in the workplace, and allergic effect it causes me). I further mentioned that I was surprise[d] he would commit the very same act after having been talked to by the Corporate Office. He remembered the incident stating Ms. Clark had advised him not to wear scented products in the workplace, however, she agreed with him regarding his opinion that if I was that sensitive, I did not need to be working here. He further stated that she did not know that I was still upset by the incident, and he began to apologize profusely. I emphasized to him that I was not still upset about that incident. However, my concern is the comment is totally inappropriate in the workplace because of the following reasons: (1) the forum in which he made the comment. The person he was talking about was not present, (2) the possibility of influencing staff members present to feel the same way he does which creates tension in the workplace, (3) in my situation, it is essential to recognize the Americans with Disabilities Act, (4) re: Ms. Chavers it was inappropriate for him to say where she can work, and (5) he continues to make this comment in total disregard of the effect. Hopefully, Mr. Bell will not continue this behavior, however, I do want to keep you in the loop. (emphasis added). Ms. Randolph responded to Ms. Gatewood via e-mail on April 9, 2015, by stating that, This is the first time I’ve heard you make mention of ADA for your condition. We have never gotten any medical documentation from you regarding special accommodations for your sensitivities and yet, we have continued to be supportive of your allergies and the needs you have regarding scents and strong odors. If you are stating that you have a condition covered under the ADA, we need documentation in support of that so that we can explore our responsibilities in that regard further. Via an e-mail dated April 16, 2015, Ms. Gatewood responded to Ms. Randolph’s request by attaching a note dated April 15, 2015, from Dr. Kalenian recommending that Ms. Gatewood have a fragrance free environment due to asthma and chemical sensitivity. Ms. Gatewood also attached Dr. Kalenian’s October 7, 2003, letter that was quoted above in paragraph number 14. In addition, Ms. Gatewood reiterated in her April 16, 2015, e-mail that “the current source of issues for me is when counselors use heavily scented hand products when handling inmates’ charts that I am required to countersign as the Qualified Supervisor.” To the extent that Ms. Gatewood’s November 5, 2014, e-mail amounts to a request for a reasonable accommodation within the meaning of the ADA, her subsequent e-mail on April 9, 2015, indicates that The Unlimited Path addressed her concerns regarding Mr. Bell’s use of scented aftershave. Moreover, The Unlimited Path conducted a staff meeting at some point between November 5, 2014, and December 25, 2014, at Jackson CI and trained the staff members on workplace grooming etiquette and being sensitive to co-workers’ allergies. To the extent that Ms. Gatewood’s April 9, 2015, e-mails amount to requests for a reasonable accommodation within the meaning of the ADA, The Unlimited Path mandated in May of 2015, that female staff members at Jackson CI no longer wear scented lotions. In addition, The Unlimited Path prohibited liquid soap in the bathroom at Jackson CI. To the extent that any of the e-mails discussed above amount to requests for a reasonable accommodation within the meaning of the ADA, the greater weight of the evidence demonstrates that The Unlimited Path took appropriate actions to satisfy those requests. Aside from the issues regarding her allergies, Ms. Gatewood’s tenure at The Unlimited Path has been marked by difficulties with DOC. For example, Ms. Gatewood did not have a good working relationship with the assistant warden of programs at Lowell CI when she was the Program Director there. As a result, Ms. Randolph encountered resistance when she sought permission from DOC to transfer Ms. Gatewood from Lowell CI to Jackson CI. Margaret Agerton, the Assistant Bureau Chief in DOC’s Bureau of Programs, felt as if The Unlimited Path was transferring a problem from one place to another. Nevertheless, Ms. Agerton approved the transfer with the caveat that this would be the last one. Events Leading to Ms. Gatewood’s Demotion On June 2, 2015, Ms. Gatewood requested leave from Thursday, July 16, 2015, through Friday, July 24, 2015, and her request was approved the next day. Because DCF is responsible for licensing and regulating substance abuse and mental health facilities throughout Florida, Michael Van Bebber of DCF arrived on July 23, 2015, at Jackson CI in order to conduct an audit. The Unlimited Path had received advance notice approximately two weeks beforehand. At the time of the audit, Jackson CI was treating 68 inmates. Even though Mr. Van Bebber considers The Unlimited Path to be one of the highest performing substance abuse providers that he reviews, he was disturbed by the state of the treatment program at Jackson CI. Three counselors employed by The Unlimited Path at Jackson CI had resigned within the previous week, and there were not enough counselors for the 68 people receiving treatment. In addition, Mr. Van Bebber considered the treatment facility to be too small for the number of people in the program. In his opinion, the facility was overcrowded, and the overcrowding caused the inmates to be extremely agitated. Mr. Van Bebber felt unsafe and locked himself in an on-site office. With regard to the overall functioning of the program at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path was not performing at the level he would expect from an established provider of residential treatment programs. In fact, The Unlimited Path almost got a warning that could have resulted in the loss of its license at Jackson CI. Because Mr. Van Bebber considered DOC to be equally responsible for the problems at Jackson CI, the warning was not issued.3/ At the time of the audit, Michael Dozier worked for The Unlimited Path, and he substituted as the Program Director at Jackson CI during Ms. Gatewood’s vacation. Mr. Dozier has over 25 years of experience with prison residential treatment communities. He is recognized as an authority on residential treatment programs/communities. Upon arriving at Jackson CI, Mr. Dozier spoke to The Unlimited Path’s staff members and estimated that 50 percent of those to whom he spoke were looking for another job. As Mr. Dozier examined the physical area housing the substance abuse treatment program, he noticed that the facility was unclean and that many of the inmates were disheveled in appearance. This indicated to Mr. Dozier that there was a lack of structure and accountability. On July 23, 2015, Mr. Dozier wrote a memo to the “Executive Leadership” of The Unlimited Path recommending the “immediate removal” of Ms. Gatewood as the Program Director of Jackson CI: First, let me start by saying I have spent the past week evaluating the strengths and weaknesses of our Jackson CI RTC with hopes of identifying the direct cause of high staff turnover, staff resignations without notice, high staff dissatisfaction, and high levels of inmate frustration. During my review, I was very discouraged by what I found. The program space was very dirty with trash cans overflowing, negative graffiti on the walls, chairs disorganized in group space, and counseling offices discombobulated. I also noticed heavy layers of dust and spider webs in the windows [along with] hanging poster paper with inappropriate writing on them. As I focused my attention on the program, I quickly realized that there was no structure in the program. There appeared to be no accountability when it came to community expectations. [R]esidents were walking around with their shirts out, failing to wear their ID, using abusive language and consistently giv[ing] the staff negative feedback when being directed. After speaking to several structure members, I received the following feedback: the last structure meeting was held over three months ago, staff is not assigned to departments, there are no department meetings, no visual display of assigned structure positions and no systems for behavior management/behavior shaping. It was very disappointing to witness the disarray in Morning Meeting and Wrap-up. [T]hose meetings had no structure or desired outcome and residents expressed no trust of the environment. It was clear that staff had been receiving little to no direction from the program director when it came to managing the community and creating program expectations. During my interviews with staff, it was apparent that the director spent most of the time being punitive towards staff focusing on issues such as the way they wore their hair, what they [were] wearing, what lotion they were using and what deodorant they had on. It was also reported that the director would always make negative comments about the corporate office, negative comments about other employees, and a clear dissatisfaction with the contract manager. [S]taff also stated that if they complained about anything the director would defiantly retaliate against them using their request[s] for time off, [the] dress code, clinical files, or [by assigning that staff member to] the difficult clients that week. I was clearly concerned about the staff morale, lack of leadership and the poor client satisfaction I heard over the past four days. As you know, the program director has to be seen as the ultimate role model in the Therapeutic Community. Based on my findings, I am recommending the immediate removal of the Program Director. On July 27, 2015, The Unlimited Path removed Ms. Gatewood from her position as Program Director at Jackson CI and reassigned her to a counselor position at the Northwest Florida Regional Annex. A memorandum signed by May-Li Clark, Ms. Gatewood’s immediate supervisor at the time, explained why Ms. Gatewood was demoted: During the dates of 7/21/15 – 7/23/15, while Mr. Dozier, State Director, was onsite at Jackson CI’s RTC, several issues were noted that clearly reflect lack of leadership within the program. The following issues were noted: No structure within the program; last structure meeting was held over three (3) months ago, no staff assigned to the departments within the community; department meetings with the community were not being held, no visual display of assigned structure position; and no system for behavior management/behavior shaping within the program. Morning Meetings and Wrap-Up Meetings were unorganized with no desired outcome. There was no accountability in regards to community expectations as the inmate/clients were not in Class A uniform, did not have ID’s, were allowed to use profane language and did not follow staff directives. It was apparent that the inmate/clients were experiencing a high level of frustration. Additionally, the inmate/clients expressed no trust within the treatment environment. The memorandum also held Ms. Gatewood responsible for a high amount of turnover among counselors at Jackson CI: Between the dates of 7/17/15 – 7/22/15, two staff members quit without notice and one staff member was escorted off the compound by Jackson CI Administration. In addition to the immediate staff turnover concerns, it has been noted that the program at Jackson CI has experienced a high level of staff turnover since The Unlimited Path took over operations of the program. Issues that were noted which have been the main contributing factors to staff turnover include: 1) program space (staff work space) was unsanitary with trashcans overflowing, layers of dust and spider webs in the windows, disorganization of program and office space, negative graffiti on the walls and hanging poster paper with inappropriate writing on them; (2) staff receiving little to no direction from the program director regarding program structure, creating and managing program expectations and minimal training regarding clinical file documentation; and 3) fear of retaliation when speaking of concerns or seeking assistance. Ms. Gatewood signed the memorandum but noted that she did not agree with its contents and would challenge the decision.4/ Since the end of July 2015, Ms. Gatewood has been working as a Counselor at the Northwest Florida Regional Annex. As a Counselor, Ms. Gatewood does not have to handle the paperwork of other counselors. The greater weight of the evidence does not demonstrate that Ms. Gatewood’s demotion was retaliation for her repeated complaints about co-workers being insensitive about her allergies. In other words, The Unlimited Path had valid reasons for demoting Ms. Gatewood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Constance K. Gatewood’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of June, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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, 2017.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner and retaliating against him because he complained of racial discrimination.
Findings Of Fact Rogers' claim of racial discrimination in treatment is not supported by the evidence. His claim of a disparity in pay is supported by the fact that the three other shift managers who are not African-Americans earned more than he. In response, however, Calder showed legitimate differences in the qualifications and responsibilities of the shift managers, and that higher compensation for the other three was justified. Circumstantial evidence from which one could draw an inference of retaliatory intent consists of Lang's email and Kaminski's statement that his job was in jeopardy and the email did not help. But Lang's email also addressed legitimate business concerns. In the end, it was his unwillingness to act as a supervisor that caused Rogers to be demoted. (He was fired for insubordination on December 17, 2009, by Otero, the same person who had hired and promoted him.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by Petitioner in this case. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 23rd day of December, 2010.
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1996.
The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Petitioner filed his petition and request for formal hearing approximately December 1, 1992. The attachments thereto suggest that he began requesting redress June 19, 1992. The agency referred his December 1, 1992 petition to the Division of Administrative Hearings, pursuant to Section 120.57(1) F.S. The Petitioner alleges that Petitioner's substantial interests are adversely affected by his employing agency paying other employees similarly situated more than Petitioner is paid. The Petition's attachments also obliquely put at issue the agency's refusal to process a special pay increase request for an individual exception in Petitioner's pay rate to the Department of Administration (now Department of Management Services). Such an application was refused by the agency approximately May 21, 1990. (See Petition attachments and Petitioner's Exhibit P-6.) Petitioner has not formally petitioned to invalidate any agency rule. Petitioner was hired by the Department of Corrections on April 6, 1965 in the position of guard. On September 1, 1965, he was promoted to Road Prison Officer I (RPO I), and his salary was increased. On October 27, 1989, he was promoted to Correctional Officer II (CO II). At the time of his promotion to CO II, his biweekly salary was $1,029.07. The maximum biweekly salary for that class was $1,004.14. Salary ranges for a job-class are posted on the job vacancy notice for that position. Petitioner had constructive, if not actual, knowledge of the pay grade range (maximum and minimum) at the time he accepted his October 27, 1989 promotion to CO II. Petitioner remained in the CO II class as of the date of formal hearing, however CO II is now known as Correctional Officer-Sergeant. The Petition herein has not affirmatively put at issue the Respondent agency's failure to promote Petitioner since 1989, however it is noted that at all times material, Petitioner met or exceeded all job performance requirements of a CO II. Petitioner, like all other employees similarly situated, has received salary adjustments and pay raises as appropriated by the legislature since October 27, 1989, even though he exceeded the maximum salary for the class he was occupying at the time. The testimony is clear that, as a CO II, Petitioner's salary is negotiated with the Respondent agency by a bargaining representative of the Police Benevolent Association, and that Petitioner was aware, at least by May 21, 1990, when he was denied an individual pay adjustment above the maximum for his pay grade, that he could file a grievance. He has never done so. From the foregoing, the only reasonable inference is that Petitioner has, at all times material, been subject to the terms of a collective bargaining agreement for State of Florida career service employees which provides for a grievance procedure. The terms of the collective bargaining agreement are not in evidence, however. As of the date of formal hearing, Petitioner also has filed no action before the Public Employees Relations Commission. The maximum authorized annual salary for a Correctional Officer- Sergeant as of the date of formal hearing was $29,479.84. At the present time, six employees ranked as Correctional Officer-Sergeant receive salaries in excess of Petitioner's salary. These employees in the same class are James Vaughn, Charles Williams, John C. Norman, Glynn H. Dunham, James Newsome and James Hamilton. Some of these employees have been employed by Respondent fewer years total than Petitioner. James Vaughn was promoted to CO II (now Correctional Officer-Sergeant) on April 19, 1974; Charles Williams on November 28, 1975; John C. Norman on February 20, 1976; Glynn H. Dunham on November 9, 1975; James Newsome on January 9, 1976; and James Hamilton originally on December 1, 1975 and then after a separation from employment, rehired as a CO II on January 1, 1985. As of January 1, 1987, all six of these employees were granted an across the board pay raise which equalized their salaries. The excess raise was given to the employees in a lump sum payment. Employees working in certain geographical regions of the state were granted a set pay adjustment for that region, up to $5,000. This amount may cause an employee's salary to exceed the maximum of the pay range for the CO II class. The Petitioner does not work in one of these geographic regions. By the time Petitioner was promoted to the position of CO II on October 27, 1989, the other six employees were earning $1,120.04, biweekly. Although their salaries exceeded the maximum salary for that class ($1,004.14), their pay raises were appropriated by the legislature across the board, regardless of whether the maximum range would be exceeded. Petitioner was also being paid in excess of the maximum for his class (RPO I) and in excess of the promotional class (CO II). Petitioner's biweekly salary at that time was $1,029.07. He also was given a raise in salary whenever it was authorized by a legislative appropriation bill. (See Finding of Fact 5). In early 1993, Petitioner brought to Respondent agency's attention that another employee, Richard E. Cobb, was making a salary in excess of what was permissible. Once the Department became aware of the error, it forwarded the information to the State of Florida, Office of the Comptroller for review. The error was corrected, and Richard E. Cobb's salary was reduced prospectively and the retroactive recovery of the overpayment was begun through deductions to Mr. Cobb's salary. Petitioner also complained about employee Blendage Weeks being promoted on September 1, 1989 with a 3.5 percent pay raise. Mr. Weeks is not a similarly situated employee because he is in a different job class than Petitioner. Also, although Petitioner believed that Mr. Weeks was given a raise in excess of the maximum for his class (Correctional Officer Chief I), in fact, the evidence shows that Mr. Weeks received a raise that brought him up from his then salary of $1,209.55 biweekly to the maximum for his class of $1,253.31 biweekly. 17. Rule 60K-2.002(5), F.A.C. (formerly 22A-2.001) provides: An employee shall not be paid in excess of the maximum of the salary range for a class, unless such payments are authorized by these rules or legislation. 18. Rule 60K-2.004(1)(b), F.A.C. (formerly 22A-2.004) provides: The agency head is authorized to grant a promotional appointment to an individual at a base rate of pay from the minimum to the maximum of the salary range for the class to which promoted provided such increase does not exceed 10 percent of the employee's base rate of pay prior to promotion. Pursuant to the foregoing rules, promotional pay raises are treated differently than legislatively appropriated pay raises and the agency may grant a promotional pay raise as long as it does not exceed the maximum of the salary range for the class into which the employee is being promoted. Petitioner does not fall into any of the protected classes governed by Section 760.10, F.S. and has filed no charge of discrimination with the Florida Commission on Human Relations.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the relief sought be denied and the petition therefore dismissed. RECOMMENDED this 21st day of December, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7417 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted, except as to month and day. Accepted as to content of Rule 60K-2.002(5) [not 60K-1.002(5)] F.A.C. The remainder of PFOF 3 is not properly cited. Accepted. Accepted as to what the salaries are and their names. The remainder of PFOF 5 is rejected as mere argument. Respondent's PFOF: 1-7,9-11,14-15 Accepted. 8,12 Accepted as modified to more accurately reflect the record evidence. 13 Covered in FOF 8; otherwise rejected as immaterial. Rejected as mere argument. Covered except as cumulative; see FOF 16. Rejected as evidentiary rulings or cumulative; see FOF 12. COPIES FURNISHED: Brian T. Hayes, P.A., Esquire 245 East Washington Street Monticello, Florida 32344 Laura S. Leve, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact By application dated April 29, 1988, Petitioner applied to Respondent for a Florida real estate salesman's license. Petitioner disclosed on the application, in response to question six, that he had been convicted of second degree murder in the killing of his wife on October 10, 1969, during a domestic dispute. He was sentenced to 15-20 years and paroled after seven years in December, 1977. He successfully completed his parole on January 16, 1980. Petitioner also disclosed on his application that he was arrested for the solicitation of a prostitute on November 18, 1987, in Daytona Beach. By a Pre-Trial Intervention Agreement entered into by Petitioner and the State Attorney's Office, the parties agreed that the case would be dropped if Petitioner did not violate any other criminal laws for the next six months expiring on September 10, 1988. Petitioner has not violated the provisions of the Pre-Trial Intervention Agreement and, presumably, the solicitation case has been dropped. Petitioner was also arrested and convicted of either driving under the influence or disorderly conduct in Michigan. This conviction, which resulted in a $50 fine, was not disclosed on the application.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for a real estate salesman's license. DONE and RECOMMENDED this 5th day of December, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 5th day of December, 1988. COPIES FURNISHED: Gifford Lorimer Crippen 4018 North Harbor City Boulevard Melbourne, Florida 32935 Manuel E. Oliver, Esquire Assistant Attorney General Suite 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
