The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a certified nursing assistant, intentionally denied the fact that she had been convicted of crimes; and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact Petitioner Ruby Mouzon ("Mouzon") wants to become a certified nursing assistant ("CNA"). Because she is not currently certified in another state, to accomplish this goal Mouzon must submit an application for certification by examination to Respondent Board of Nursing (the "Board"). The Board is responsible for reviewing such applications and determining whether applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination. On February 15, 2012, Mouzon submitted her first application to take the CNA examination. She truthfully answered a question on the application inquiring whether the applicant has a criminal record. This prompted the Board to request additional information regarding the judicial dispositions of her several arrests. Mouzon provided the details concerning her convictions for carrying a concealed firearm (1988 and 1992), battery (1992), and aggravated assault (1998). The Board considered Mouzon's application at its meeting on June 6, 2012, and authorized her to sit for the examination. Mouzon passed the written test in 2012 but failed the clinical skills test. For the next two years, she would be eligible to re-take the clinical skills test without taking the written test again. Therefore, on March 13, 2014, Mouzon submitted her second application for licensure as a CNA, this time as a "retester." As before, the application included a question which sought information about the applicant's criminal convictions, if any. It provided as follows: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? . . . *If you answered YES, please be prepared to create a typed or printed letter with arrest dates, city, state, charges and final dispositions and be prepared to send it to the Board Office upon request. (Do not send this information with your application for examination.) Mouzon, who with her first application had provided all of the relevant information pertaining to her various criminal convictions and thereafter been approved by the Board to take the examination in 2012, mistakenly interpreted the question as seeking merely an update to her previous application. Because she did not have any convictions besides the old ones she had already reported to the Board, Mouzon answered, "No." Mouzon's explanation for this objectively false answer is probably true. Based on her credible testimony, which the undersigned credits, it is found that Mouzon had no intention of deceiving the Board in hopes her criminal record would not be discovered. Mouzon knew, after all, that the Board, having considered her criminal convictions in 2012 and deemed them not to be disqualifying, was well aware of her background. Thus, she had no reason intentionally to omit or attempt to conceal these facts, nor anything to gain by doing so. Her belief that she needed only to update her previous application, although incorrect, was an honest mistake, more likely than not. On April 10, 2014, a member of the Board's staff named Sara Rotunda sent Mouzon a letter requesting additional information regarding the judicial dispositions of her several arrests, together with three to five letters of recommendation. Mouzon contacted Ms. Rotunda to remind her that, in connection with an application in 2012, she (Mouzon) had supplied the Board with all of the details concerning her criminal convictions. Ms. Rotunda checked the Board's files and found the information Mouzon had provided previously. Satisfied that Mouzon had complied with the Board's request for information regarding the convictions, Ms. Rotunda wrote again to Mouzon on April 15, 2014, but now asked only for letters of recommendation, which Mouzon submitted. On June 11, 2014, the Board executed a Notice of Intent to Deny Mouzon's application to re-take the CNA clinical skills test. The Board accused Mouzon of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied having any criminal convictions in response to the relevant question on the application. Determinations of Ultimate Fact Mouzon is not guilty of attempting to procure a CNA license by misrepresentation or deceit, which is a disciplinable offense and grounds for denial of licensure under section 464.204(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving Mouzon's application for licensure by examination as a certified nursing assistant. DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 23rd day of December, 2014. COPIES FURNISHED: Ruby J. Mouzon 309 Northwest First Avenue Hallendale, Florida 33009 Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 (eServed) Lavigna A. Kirkpatrick, BSN, RN, Chair Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399
Findings Of Fact Petitioner in this case is K. Kristine Nowacki. She was employed as an attorney in the office of the legal counsel for Respondent's District One in Pensacola, Florida, from November 14, 1988, until termination of her employment on June 9, 1989. Respondent is the Department of Health and Rehabilitative Services. Petitioner's immediate supervisor was Rodney Johnson, the district's chief legal counsel. Cheleene Schembera was Johnson's immediate supervisor and chief administrator of District One. Upon commencement of Petitioner's employment, the work force in the legal office consisted of Johnson, a male, and Teresa Goodson, another female attorney. Another attorney, Randy Werre, was male and began employment in March of 1989. Since Petitioner had never used a dictaphone and could type exceedingly fast, 140 words per minute, she was given a word processor to prepare preliminary drafts of her work products. Word processing equipment was limited in the office. Johnson considered the provision of such equipment to Petitioner to be an exceptional employee benefit, as opposed to a burden or impairment. Petitioner never requested that she be provided with a dictaphone. Both Johnson and Schembera were concerned about Petitioner's dress and appearance. On separate occasions, both individuals spoke with Petitioner about a need to effect changes in her personal dress and grooming habits. When Johnson offered employment to Petitioner, he discussed with her the need to do something with her long, bushy and unkempt hair style. Prior to his employment offer to Petitioner, Johnson was told by Schembera that he should counsel with Petitioner about her hair style if he intended to hire Petitioner. However, the need to change dress or hair style was not a condition of employment. On January 11, 1989, Johnson spoke with Petitioner and noted that she had handled a difficult evidentiary matter in a hearing that day. However, Johnson's comments did not amount to an endorsement of Petitioner as a person with potential to become a great trial attorney. Petitioner was hired to serve as Johnson's "backup" and to effectively take Johnson's place in the event of his absence. Petitioner never developed such capability in the course of her employment with Respondent. Although Schembera spoke with Petitioner on April 21, 1989, regarding the need for Petitioner to adopt a more conservative hairstyle and dress, Schembera sought to provide Petitioner with guidance in order that Petitioner might retain the respect of her peers. Schembera told Petitioner that the discussion had no significance with regard to Petitioner's job. Such counselling by Schembera is not unusual. She has counseled with other employees concerning dress or hair styles when she considered such action to be appropriate. On at least one occasion in proximity to Petitioner's employment, Schembera counselled a male employee regarding the necessity of that employee obtaining a hair cut. Schembera even-handedly applied her grooming code to both male and female employees. Petitioner was unable to properly perform her job duties. In the judgement of her supervisors, she did not adequately prepare for hearing or otherwise adequately present Respondent's position in numerous hearings. As an attorney in Respondent's employment, Nowacki was a select exempt employee serving at the pleasure of Respondent. As such an employee, Petitioner's employment could be terminated at any time by Respondent. By letter dated June 9, 1989, Johnson informed Petitioner that her employment had been terminated. Her gross wages at the time of discharge from employment were $788.46 biweekly. The testimony of Petitioner's immediate supervisor, Rodney Johnson, was candid, consistent and creditable. That testimony establishes that Petitioner's employment was terminated because of her work performance. Neither dress nor hair length or style were factors in her termination. Johnson felt that Petitioner's appearance had begun to improve at the time of her employment termination. Petitioner's testimony, as a result of inconsistencies in that testimony and her demeanor while testifying, is not credited and fails to establish that her supervisors unlawfully terminated her employment. During the course of her seven months of employment, Petitioner made extensive use of sick leave. From an initial allotment of 104 hours, Petitioner used all but 17 hours of that leave amount. On June 27, 1989, Petitioner filed a charge of discrimination against Respondent alleging termination of employment on the basis of sex.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6600 The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Adopted in substance. Rejected with regard to pregnancy comment, credibility. Rejected, legal conclusion, argumentative and a mere restatement of Petitioner's position. The creditable evidence establishes that Petitioner was hired and retained in employment until her lack of capability was demonstrated. Rejected, Petitioner's testimony in this regard is not credited. As established by Johnson's testimony, which is credited, one of Petitioner's asserted strengths was her typing capability and she was provided a word processor as a benefit. Petitioner did not establish that she objected to this arrangement at the time. Rejected, creditability, insofar as grooming and dress requirements comprising employment conditions. Adopted in substance. 7.-8. Rejected, relevancy. Rejected, Petitioner's version is not supported by weight of the evidence, creditability. Rejected, relevancy. Adopted in substance, but not verbatim. Rejected, not supported by the weight of the evidence. 13.-16. Rejected, relevancy. 17. While Schembera frankly admitted her dislike for Petitioner's dress and grooming and also accepted responsibility for the ultimate approval of the decision to terminate Petitioner's employment, this testimony does not establish that the basis for employment termination was other than Petitioner's job performance. This proposed finding must be rejected as a mischaracterization of Schembera's testimony. 18.-19. Rejected, unnecessary. Adopted. Rejected, not supported by weight of the evidence. 22.-24. Rejected, unnecessary. Respondent's Proposed Findings 1.-21. Adopted, although not verbatim. 22.-25. Rejected, relevancy. 26.-28. Adopted by reference. 29.-30. Rejected, relevancy. 31. Adopted in substance. COPIES FURNISHED: John Barry Kelly,II, Esq. 15 West Main Street Pensacola, FL 32501 Peter S. Fleitman, Esq. Lynda Quillen, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1550 Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are: Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision? If so, does the Petitioner in this case have standing to bring such a challenge? If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law? All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.
Recommendation Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner. DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.) Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case. Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details. Further, most of the factual assertions on this page constitute inferences not warranted by the evidence. Page 17: All of the material on this page is rejected as constituting unnecessary details. Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details. Further, some of the assertions on this page constitute inferences not warranted by the evidence. Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details. Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence. Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence. Findings proposed by Respondent: The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph 17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact. Findings proposed by Intervenor: The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.) COPIES FURNISHED: Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721 Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building Tallahassee, Florida 32399-0400 Ronald G. Meyer, Esquire Post Office Box 1547 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Sydney H. McKenzie, III, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the allegations set forth in the Respondent's letter to the Petitioner dated February 16, 2004, are correct.
Findings Of Fact Pursuant to statute, the Florida Department of Education has developed and administers the Florida Teacher Certification Examination. A Florida teacher seeking certification as an educator by the State of Florida must obtain a passing score on the exam. In November 2003, the Petitioner applied to take the Teacher's Professional Education Test on January 24, 2004. The Petitioner signed the registration application on November 13, 2003, acknowledging that she agreed to the provisions set forth in the exam application materials. The Respondent received the Petitioner's signed application on November 17, 2003. The instruction sheet contained in the exam application materials provides in relevant part that examinees may not "communicate with other examinees in any way" or "give or receive assistance from other examinees," and states that related violations will result in the examination being "voided." Approximately two weeks prior to the exam, the Respondent sent a letter to all registrants. The Petitioner received a copy of the letter. In the letter, the Respondent outlined behaviors regarded as cheating, and specifically identified cheating to include "looking, or attempting to look, at the examination answers, responses, or other materials of another examinee." Prior to exam administration, supervisors and proctors received a Test Administration Manual and received instruction on identification of "cheating" or "suspected cheating," including observation of an examinee looking or attempting to look at another examinee's test materials or answer sheet. As to cheating, the Test Administration Manual sets forth the procedure to be followed by a supervisor or proctor who observes or suspects cheating is occurring, and provides in relevant part as follows: If a room supervisor who observes cheating activity, or to whom cheating activity is reported by a room proctor, is reasonably certain that cheating is taking place based on the clarity, duration, or vantage point of the observations, whether or not another individual can confirm the observation, the room supervisor shall collect the examinee's examination materials; inform the examinee that he or she will not be allowed to complete that examination or participate in any further testing on that examination administration date; make notes of the identity of those involved or in a position to have observed or been aware of the activity and the relative locations in, and other pertinent features of, the examination room; at the conclusion of the testing time, quietly request examinees who were not involved in but were in a position to have observed or been aware of the cheating to come to a private office or other appropriate location to be interviewed by, and give a statement to the room supervisor; and prepare a full written report of the incident, including as attachments all witnesses' statements and other pertinent documents or tangible items and make the report part of the Room Supervisor's Irregularity Report. Suspected cheating - If a room supervisor reasonably suspects that cheating activity is occurring but cannot be certain, even after conferring with one or more other individuals, that a cheating activity is taking place, the room supervisor shall continue to make observations and quietly notify a room proctor to continue to make observations of the suspicious activity; follow steps c, d, and e in number 3 above; and include in the Irregularity Report a notation that the answer folder of the examinee suspected of cheating should be analyzed in connection with the circumstances described in the report. During the exam administration on January 24, 2004, a supervisor present in the room where the Petitioner was located observed the Petitioner staring at the answer sheet of another person (identified as "Rekha"), who was also taking the exam. Rekha was seated to the left and slightly ahead of the Petitioner in the exam room. At the hearing, the supervisor described the Petitioner's suspicious behavior as "constant staring" and "noticeable concentration" towards Rekha's answer sheet. At the time the room supervisor observed the Petitioner's behavior, the test period was drawing to a close. Many examinees had already completed their work and left the room. By the time the supervisor saw the Petitioner's behavior, there were no other examinees in position to observe the Petitioner. After the exam ended, the supervisor compared the Petitioner's answer sheet with that of Rekha, and observed that there were a number of erasures and answer changes on the Petitioner's answer sheet that matched Rehka's answers. The supervisor completed an "Irregularity Report" dated January 24, 2004, in which he wrote: I witnessed Shagufa constantly looking at Rekha's answer sheet, in about the last 30 minutes of test. I compared answer sheets afterwards and noticed several answer changes on Shagufa's sheet to what was on Rekha's. The irregularity report and the answer sheets were submitted to the Respondent for further review. After the Respondent received the materials, the Respondent assigned Dr. Cornelia Orr, an expert in test response analysis, to review the answer sheets. Dr. Orr testified persuasively at the hearing and her testimony is credited. Dr. Orr compared the exam score for the Petitioner (referred to as Examinee A) with that of Rekha (referred to as Examinee B) and determined that their scores were "very similar." Dr. Orr reviewed the erasures on the answer sheets and determined that there were 27 erasures on the Petitioner's answer sheet. There were four erasures on Examinee B's sheet. Of the Petitioner's 27 erasures, 18 were changed from incorrect to correct answers and matched the answers of Examinee B. An additional four answers were changed from correct to incorrect answers and matched incorrect answers of Examinee B. Dr. Orr reviewed the incorrect answers on both sheets and determined that the Petitioner missed 54 questions, that Examinee B missed 48 questions, and that 30 of the Petitioner's incorrect responses matched the incorrect answers of Examinee B. Dr. Orr described the incidence of corresponding incorrect answers on the two answer sheets as "highly unusual." After concluding her review of the two answer sheets, Dr. Orr then analyzed the answers and scores of the 3,747 persons who took the test on the same day to determine the correlations between all examinees to Examinees A and B's answers. For all examinees, the average number of wrong answers corresponding to those of Examinee B was nine, as compared to the Petitioner's 30 incorrect answers which matched those of Examinee B. Based on Dr. Orr's review and evaluation, she determined that the chance probability of the Petitioner's high number of incorrect answers corresponding to those of Examinee B was one in 33,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order voiding the score of Shagufa Mubarik on the January 24, 2004, Professional Education Test. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 14th day of July, 2004. COPIES FURNISHED: Shagufa Mubarik 2426 Island Club Way Orlando, Florida 32822 Scott J. Odenbach, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 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
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
Findings Of Fact At all pertinent times, the Department of Community Affairs, an executive agency of state government, employed more than 15 persons. During fiscal year 1985-86, 398 black persons and 994 white persons applied for employment with the Department of Community Affairs. Of these, 26 black persons and 101 white persons were hired. Of the white applicants, 10.16% were hired while only 6.53% of the black applicants were hired. Petitioner's Exhibit No. 1. The evidence does not reveal the qualifications of any of these applicants. Differential hiring rates for black and white applicant pools persisted in subsequent years, when looked at on a Department-wide basis, even though respondent has formally adopted affirmative action plans and has consistently met hiring goals for black candidates. Lay Off A black woman, petitioner Michelle Bryant worked for the Department of Community Affairs from January 5, 1983, until her lay off, effective at the close of business September 30, 1987. She and four others, including Leonard Case, a white man, lost their jobs in the course of a reorganization that transferred "the Section 8 Housing Programs" in which they worked to another department of state government. By letter dated September 10, 1987, Ms. Bryant was informed of the possibility that she had certain "bumping rights": As a permanent career service employee, you are afforded the right to request a demotion or reassignment in lieu of this lay off ... A demotion or reassignment request will be accomplished if there are other employees in appropriate classes who have a lesser amount of retention points than you. Petitioner's Exhibit No. 5. Responding with a memorandum to Bud Parmer dated September 22, 1987, Ms. Bryant asked to be considered for another position within the Department of Community Affairs. Unlike Ms. Bryant, Mr. Case, who began work with respondent on August 11, 1987, had not attained permanent status in the career service as of September 30, 1987. New Jobs Sought When told of the lay off, affected employees were advised to seek other employment. Taking this advice to heart, Ms. Bryant visited the personnel office in the Department of Community Affairs twice weekly, during the fall of 1987. She also went to the Department of Administration, in an effort to be listed as eligible for any job in state government for which she was qualified. As early as 1984, she had succeeded in being listed by the Department of Administration as eligible for positions described as "planner II at HRS," "planner II in intergovernmental relations," and "planner II in environmental resources." On October 22, 1987, the Department of Administration found Mr. Case qualified to hold a "planner II" position, a position which has not been designated as entry level. The parties have stipulated that Ms. Bryant is also in fact so qualified "by reason of her education, experience, and training." When, on November 2, 1987, respondent announced two vacant "planner II" positions, one (No. 00136) in Apalachicola and one (No. 00250) in respondent's Bureau of Public Safety Management in Tallahassee, Ms. Bryant applied for both. Because her telephone had been disconnected, she was not interviewed for the job in Apalachicola. The Bureau in Tallahassee advised her nobody would be hired to fill the other position, because "the Bureau had decided it was not going to administer the program." Prehearing stipulation, page 3. When respondent's Bureau of Public Safety Management advertised two more vacant "planner II" positions (Nos. 00235 and 00244) on November 5, 1987, Ms. Bryant again applied. But, in accordance with applicable rules, these positions went to employees of the Bureau of Public Safety Management who had been subjects of another lay off there. Another Vacancy After a "planner II" vacancy (No. 00570) arose in the Bureau of Planning, within respondent's Division of Emergency Management, the Division requested from respondent's personnel office a certificate listing people eligible to fill a "planner II" position. In contrast to the procedure others within the Department of Community Affairs followed the preceding month, no job announcement nor any other public notice of vacancy No. 00570 was ever given. On December 3, 1987, at respondent's personnel office, a computer operator obtained a print-out of a "certificate of eligibles" listing names of more than three people who, according to the Department of Administration, were eligible to work in "planner II" positions. For reasons perhaps best known to the Department of Administration, Michelle Bryant, although having been listed as a "planner II" in three specific areas, was not listed under the general category "planner II." Mr. Case was the only employee respondent had laid off whose name appeared on the certificate. Case Chosen Before it was decided to obtain a "certificate of eligibles," employees responsible for choosing the new hire discussed Mr. Case with Gordon Guthrie (T.149,150) who, as director of respondent's Division of Emergency Management, ultimately authorized hiring Mr. Case for position No. 00570. After an interview, the only one conducted, Mr. Case was hired on December 4, 1987. He began work in his new job on December 7, 1987. All of respondent's employees involved in making the decision to hire Mr. Case are white. Brenda Brown, a black temporary employee, testified that the bureau chief knew of her interest in the job Mr. Case eventually got, at the time he or the division director decided against advertising and in favor of procuring a certificate of eligibles. But the evidence did not show that the decision makers were told either that Brenda Brown or that Michelle Bryant was not listed on the certificate of eligibles, before they asked the personnel office to obtain the list. On the other hand, those responsible for filling the position did not make any commitment to proceeding without advertising, until after they saw the list. At least no such commitment was irrevocable. Department officials testified that it was necessary to use a "certificate of eligibles," instead of advertising the vacancy, so they could fill the position quickly, in order to avoid forfeiture of federal funds, payable under a contract between the Department and a federal agency, that required a certain minimum number of workers to be on the project. The Department of Community Affairs used this method of hiring with some frequency. It was not clear how much notice the Department had that a vacancy in position No. 00570 would arise. Because she did not know of the vacancy, Ms. Bryant never made formal application specifically for the position Mr. Case filled. As far as the evidence shows neither she nor the Department of Community Affairs was responsible for the snafu at the Department of Administration that kept her name off of the "certificate of eligibles." But her desire to work at the Department of Community Affairs as a "planner II" was well known to the decision makers. When Ms. Bryant learned what had happened, she felt something was amiss, and filed a complaint with the FCHR. Only after an ensuing hearing did the then personnel director of the Department of Community Affairs look over the certificate of eligibles. He was surprised to find Ms. Bryant's name absent, because of her diligence in pursuing jobs at the Department and in state government generally. Other Work Found After her lay off by the Department of Community Affairs, Ms. Bryant found another job, working for the Department of Health and Rehabilitative Services. This job was not as well paid as the job that Mr. Case got at the Department of Community Affairs. Even with a recent raise, she does not make as much as she would have made, if she had gotten the job given Mr. Case and progressed as he did to a "community assistance specialist."
Recommendation It is accordingly, RECOMMENDED: That respondent deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 14, 16 through 24, 27, 33, and 34 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 15 was not proven. Petitioner's proposed findings of fact Nos. 25, 26, 28 through 32, 35 and 36 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 1, petitioner was an applicant despite not being listed. Respondent's proposed findings of fact Nos. 2 through 10, 15, and 19 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, petitioner could have been hired if respondent had advertised the position. With respect to respondent's proposed finding of fact No. 12, it was only Mr. Irwin who, as far as the proof showed, did not realize Ms. Bryant's name was not listed when Mr. Case was hired. He was not shown to have participated in the hiring decision. Respondent's proposed findings of fact Nos. 13, 17, and 18 are properly proposed conclusions of law. With respect to respondent's proposed finding of fact No. 14, it was not clear how far ahead the agency knew the vacancy would occur. With respect to respondent's proposed finding of fact No. 16, things did not necessarily occur in that order. Respondent's proposed findings of fact Nos. 20 through 24 pertain to subordinate matters. COPIES FURNISHED: Thomas G. Pelham, Secretary 2740 Centerview Drive Tallahassee, FL 32399 Ben R. Patterson, Esquire Patterson and Traynam 1215 Thomasville Road Tallahassee, FL 32315 Andrea Bateman, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 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
