The Issue Whether the respondent committed the acts alleged in the Administrative Complaint dated December 8, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: During the 1994-1995 school year, Ernest L. Sellars was employed as a teacher by the Broward County School Board. During that year, he taught second grade at Park Ridge Elementary School, where he had worked since the 1992-1993 school year. Prior to the 1994-1995 school year, Mr. Sellars taught a fifth-grade class at Park Ridge Elementary School. Walter L. Cooper was the principal of Park Ridge Elementary School during the 1994-1995 school year. On March 16, 1995, Mr. Cooper submitted a Personnel Investigation Request to the School Board’s Professional Standards Office regarding an allegation by Faith Williams that, at 8:15 a.m. on March 15, 1995, Mr. Sellars had physically abused her daughter, S. B., a student in his second grade class. The specific allegation stated in the request was that Mr. Sellars “grabbed her around her neck, threw her to the floor causing scratches on her knee.” Ronald S. Wright, the Professional Standards Director for the School Board, considered the request and recommended to the Superintendent that a special investigation be conducted into the allegations. The investigation was approved and assigned to the School Board’s Special Investigative Unit, a state-certified law enforcement agency. Rodney Green, an officer with the Special Investigative Unit, was assigned to conduct the investigation. He took the statements of eight students in Mr. Sellars second-grade class, S. B., J. D., L. W., J. J., B. W., C. B., C. A., and M. B., and of S. B.’s mother, Faith Williams. These statements were taken on April 3, 5, and 6, 1995. Either Mr. Cooper, Jacquelyn Haywood, the assistant principal, or a Ms. Bean were present while the students’ statements were taken. Mr. Sellars was notified of the investigation on April 7, 1995, and Officer Green took his statement on May 2, 1995. At some point before Officer Green took the students’ statements, each student was interviewed by either Mr. Cooper or Ms. Haywood. Immediately prior to taping the students’ statements, Officer Green interviewed each of the students. Photographs were taken of the classroom assigned to Mr. Sellars’s second-grade class. These photographs were of the classroom’s closet, the arrangement of the students’ desks, the rear of Mr. Sellars’s desk and the podium standing beside the desk, and the cabinet adjacent to the classroom’s sink. These photographs, which appear to be the same as those received into evidence as Petitioner's exhibit 2, were shown to the students during the April, 1995, interviews and were attached to the investigative report. Four of the students in Mr. Sellars’s 1994-1995 second-grade class testified during the hearing, J. D., J. J., L. W., and J. A.. They were the only witnesses, with the exception of Mr. Sellars, to testify who had personal knowledge of Mr. Sellars’s conduct in the classroom. The investigative report containing the statements taped by Officer Green was received into evidence without objection.1 J. D. and L. W. testified at the hearing regarding their recollection of the incident in which Mr. Sellars allegedly physically abused S. B.2 Their testimony was not only conflicting, it was not consistent with the statements they gave to Officer Green. In addition, far from explaining or supplementing the evidence given by J. D. and L. W. at the hearing, the descriptions of the incident included in the statements given to Officer Green varied widely both in the generalities and in the details, and it is difficult to conclude that the statements even dealt with the incident which allegedly took place on March 15, 1995. J. D., J. J., L. W., and J. A. testified at the hearing regarding their recollection of the ways in which Mr. Sellars disciplined or punished children who were “bad" in class. Although the testimony of J. D., J. J., and L. W. was consistent in that each testified that Mr. Sellars would put “bad” students in the closet, in the cabinet, and under the desk/podium, the testimony was conclusory and inconsistent with regard to the details of the alleged confinement.3 For example, it cannot be concluded from the testimony whether students were actually put in the closet as punishment or whether they were sent to the closet for time- out. The closet was set up as a media center. Books, games, and supplies were stored on the closet shelves, and a large television on a stand was located just outside the closet. The television was in front of the closet door and held it open, and, given the position of the television, it is unlikely that the door to the closet was ever closed. J. D. testified that Mr. Sellars would poke students in the chest with his middle finger, which was essentially consistent with information he gave in his statement to Officer Green. However, none of the students testifying at the hearing corroborated this testimony, and the statements given by the other students to Officer Green, likewise, did not corroborate this testimony. J. J. gave a graphic description in his testimony at the hearing of how Mr. Sellars put J. A. in the cabinet near the sink: “He would like, grab JA by the back of the neck and he had opened the thing and told JA get in there and JA got in there.” (Transcript at 177) J. A. testified that Mr. Sellars had never put him in the cabinet or the closet or under the podium and that he had never seen Mr. Sellars punish students by putting them in the closet or the cabinet, under the podium, or on the floor under tables or desks. He further testified that he had never seen Mr. Sellars poke students in the chest, hit them over the head with his fist, or slam them against the chalkboard or the wall and that Mr. Sellars had never done those things to him. There was no evidence presented that Mr. Sellars had been the subject of any complaint alleging improper discipline or child abuse other than the one filed by Faith Williams in March, 1995. Mr. Cooper testified that, had there been an allegation of child abuse, a report would have been filed.4 Elizabeth Anderson, J. A.’s mother, testified that her son had never told her about any instances in which Mr. Sellars had mistreated any of the students in the class. Mr. Sellars categorically denied ever having committed any of the acts alleged in the Administrative Complaint. The Superintendent has failed to present any evidence which can be used as the basis of findings of fact that Mr. Sellars committed the acts alleged in paragraphs F, G, I, J, K, L, or M of the Administrative Complaint.5 The Superintendent has failed to prove by the greater weight of the credible evidence presented at the hearing that Mr. Sellars committed the acts alleged in paragraphs D, E, H, N, O, or P of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Ernest L. Sellars and reinstating Mr. Sellars without back pay or benefits lost during his suspension. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification. Petitioner timely requested a hearing under Chapter 120, Florida Statutes. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32299-0700 William Brown, pro se 504 West Halmcrae Boulevard Avon Park, Florida 33825 Jack Emory Farley Chief Legal Counsel, District 14 Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030
Findings Of Fact Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office. At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1). Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman. The local office began having trouble communicating with its home office. Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms. Oliver. Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in". In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11). Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production. Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation. She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions. She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason. The letter which Joe Brick typed while she packed, states: October 2, 1987 Ms. Faye Oliver C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida Dear Faye: Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today. The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination. We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide. Sincerely, Joseph K. Brick JKB/st cc: Rick Cossano Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily. George Shipman was terminated in December 1987. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating: Date: 10/5/87 To: Hedi Fm: Rick Cossano V.P. Re: Faye Oliver Termination Hedi - This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees. Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude. R. Cossano D.V.P. Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified. Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused. On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees. In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver. The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation. After her termination, Faye Oliver sought employment and was employed as follows: December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually April 1988 - Unemployed February 1989 February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500 April 18, 1989 - Disney World approximately present $13,900 annually When she left Countrywide, she had been making $36,000 a year.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes. DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida. MARY CLARK 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 1st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2. 5. Adopted in paragraph 3. 6.-8. Adopted in paragraph 7. 9.-10. Adopted in paragraph 4. 11.-12. Adopted in paragraph 9. 13. Adopted in paragraph 8. 14.-17. Adopted in paragraph 9. Adopted in paragraph 10. Rejected as unnecessary. 20.-21. Adopted in paragraph 16. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 14. Adopted in paragraph 13. 29.-30. Adopted in paragraph 10. 31.-32. Adopted in paragraph 14. 33. Adopted in paragraph 15. 34.-35. Adopted in paragraph 20. 36. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraphs 2 and 14. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraphs 4 and 6. Adopted in paragraph 9. Adopted in paragraphs 9 and 11. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial. Rejected as immaterial. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence. Rejected as contrary to the weight of evidence. COPIES FURNISHED: N. James Turner, Esquire Suite 104 17 South Lake Avenue Orlando, FL 32801 Thomas R. Peppler, Esquire P.O. Box 2807 250 North Orange Avenue Orlando, FL 32802 M'Liss Jones Kane, Esquire P.O. Box 7137 Pasadena, CA 91109-7137 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1925 Dana Baird, General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Florida Commission on Human Relations Bldg. F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issue is whether any of the respondents is guilty of discriminating against Petitioner on the basis of her sex in connection with her rental of a lot in the Galaxy Mobile Home Park, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact In September 2010, Petitioner, a 54-year-old female, moved into Galaxy Mobile Home Park, 5810 U.S. Highway 92, West, Plant City, Florida. Since her arrival at the park, Petitioner has occupied her lot based on a month-to-month rental agreement. The park consists of 33 mobile home lots, four cabins, six RV lots, and one house. At present, 27 females and 22 males live there; most residents are 55 years old and older. The park manager is Respondent Adams, an 85-year-old female. She and her late husband moved to Galaxy Mobile Home Park in 1988. Initially, she was not the manager, but her husband performed all of the maintenance and lawn mowing. Ownership and property-management duties lie with Respondent David and Respondent PGM; one of them employs Respondent Adams and pays her $300 per month to serve as the park manager. In 2002, Respondent Adams moved out of the park and into a nearby residence. She works mornings in a small office located at the park, although, if needed, she remains at the park until as late as 4:00 p.m. or returns to the park in the afternoon. Her duties include cleaning the laundromat, collecting rents, showing prospective tenants available lots, and arranging for repairs. She is paid $300 per month for her services. Respondent Perez, a male reportedly 68 or 70 years old, formerly was the maintenance man at the park--the lawn mowing responsibilities having been assigned to another person. Using supplies provided by Respondent David or Respondent PMG, Respondent Perez performed maintenance work around the park as needed. No one recorded his time, and he did not work according to a set schedule. At times, he would travel and be gone for extensive periods, during which minor maintenance duties were apparently deferred until his return, sometimes months later. Respondent Perez lived in a mobile home at the park, and his sole compensation was free lot rent of about $300 per month. This obviously was a part-time job. When she first moved to Galaxy Mobile Home Park, Petitioner owned an RV, so she rented lot 148, which is an RV lot. Petitioner first arrived at the park late in the day when the office was closed, so, the next morning, she and Respondent Adams were speaking in front of Petitioner's RV. After Petitioner had paid the first-month's rent, Respondent Adams was describing the park amenities to Petitioner when Respondent Perez approached the two women, cursing loudly. Few incidents involving Respondent Perez acquired much clarity in the record, and the first of these is no exception. As Respondent Perez approached Petitioner and Respondent Adams, he appeared to be concerned about an item of potentially dangerous maintenance equipment that Petitioner may have lent to another resident. Pointing a finger at Petitioner, evidently from some distance from the two women, Respondent Perez warned her that if she lent this equipment to someone, "it is on your fucking ass," implying that she, not he, would be responsible if the resident injured himself using the equipment. For emphasis, Respondent Perez then pounded his chest, shouting, "I'm a fucking man." Petitioner replied, "and I'm a fucking woman." Later that day, two male residents were helping Petitioner set up her RV. Driving by, Respondent Perez shouted a warning to Petitioner from his vehicle, "if you let those fucking men in your yard, you'll have a yard-full of fucking men." The following morning, Respondent Perez knocked on Petitioner's door. This appears to have been the only time that he did so, and he never entered Petitioner's home at any time. When Petitioner answered the door, Respondent Perez told her that everyone was "fucking complaining" that she was using too much toilet paper, plugging up the sewage system at the park. Petitioner replied that, due to problems with her holding tank, she did not flush her toilet paper, but disposed of it in her trash, and invited Respondent Perez to take a look. Respondent Perez declined, saying, "Well, I don't know. That's what the fuck they say." In October 2011, when a resident left her mobile home to move north, Petitioner moved into the mobile home, which was at lot 163. The mobile home had a screen porch, where Petitioner would often sit, enjoying watching television and smoking cigarettes, which she tried not to smoke inside. From time to time, Respondent Perez would walk by the screen porch, and sometimes he would utter unpleasantries to Petitioner, warning her that no one could do his work. On one occasion, Petitioner complained to Respondent Adams that Respondent Perez was disturbing her by his use of a flashlight as he walked through the park at night. Respondent Adams spoke to Respondent Perez, who replaced the flashlight with a brighter lantern. The evidence does not establish that Respondent Perez was walking at night to bother Petitioner; given the location of their lots, he would have to pass her lot as he walked or drove toward the front of the mobile home park where amenities were located. Also, Respondent Perez was in an intimate relationship with a woman named Mrs. Miller, and Petitioner's lot was between the lots of Respondent Perez and Mrs. Miller. ("Mrs. Miller" is a pseudonym to protect the privacy of the resident.) In the spring of 2012, while Petitioner was talking to a male resident at the picnic area, Respondent Perez drove up and began talking to the man, evidently ignoring Petitioner. Respondent Perez told him that, the prior evening, he had met a woman in a bar. Professing to be a Christian, she had told him that she did not believe in sex before marriage. But Respondent Perez loudly proclaimed that he had had sexual intercourse with the woman that very night. At this point in the story, Respondent Perez laid face down in the grass and began violently thrusting, in a pantomime of sexual intercourse, explaining that "when I get a woman, I can go all night." Other problems arose between Petitioner and Respondent Perez. When she moved from the RV, Petitioner placed a PVC pipe from the RV in her new yard, keeping it for the new owner of the RV. Respondent Perez removed the pipe, likely as part of his duties in keeping the park clean and thinking that the used pipe had been discarded. Petitioner called Respondent Adams, accused Respondent Perez of stealing the pipe, and threatened to call the sheriff's office. Respondent Adams told her that would not be necessary, and she would buy whatever PVC pipe the new owner required to connect his RV to the park's plumbing. At some point, dissatisfied with Respondent Adams' handling of her complaints about Respondent Perez, Petitioner demanded a meeting with Respondent David. Respondent David, Respondent Adams, and Petitioner met at the park. They were talking while looking at a repair job that Respondent Perez had done, suggesting that the focus of Petitioner's complaints at least included poor workmanship on Respondent Perez's part. But when Petitioner tried to talk about Respondent Perez, Respondent David declined to do so unless Respondent Perez was present. Respondent David and Petitioner had no further conversations. The final incident coincided with the death of a neighbor, according to Petitioner, who testified that Respondent Perez's animosity toward her intensified at this time. The death seems to have taken place in July 2013. The record is insufficiently developed to find any possible connection between the resident's death and Respondent Perez's increased animosity. However, at some point, Mrs. Miller died, and Respondent Perez and Respondent Adams believed that Petitioner and another neighbor entered Mrs. Miller's mobile home after the ambulance had removed her body to rifle through her medications in order to steal those that they wanted. Petitioner admitted that she was in the mobile home going through the medications, but only to assist the emergency medical technicians in their effort to identify Mrs. Miller's prescriptions. The record is poorly developed in other respects. Petitioner testified to a steady verbal barrage from Respondent Perez, seemingly on every occasion that the two met, usually featuring epithets describing Petitioner as a "whore" or "prostitute." Petitioner called as a witness her brother, who could recall only that Respondent Perez complained about where he and his son had parked and that Respondent Perez was always "on" his sister about something, although he could not recall anything in specific. The nephew also testified, adding only that Respondent Perez often told them that they could not "fucking park" where they had parked, and he generally swore a lot. The neighbor who had joined Petitioner in Mrs. Miller's mobile home testified that she had once overheard Respondent Perez say to a male resident that all women are "whores and prostitutes." On another occasion, she overheard Respondent Perez say to Respondent Adams, as he pointed to a woman some distance away, "there's another one of those whores over there." And the neighbor overheard Respondent Adams reply, "I told you to keep that word from your mouth." A deputy who was called out in response to a complaint made by Petitioner could not remember a single detail of the call. By contrast, Respondent Adams proved to be a memorable witness. Demonstrating the danger of compound questions posed to aged witnesses, when asked by her attorney if Respondent Perez drove by Petitioner's home every day and harassed her, Respondent Adams answered that he had to--meaning that he had to drive by Petitioner's lot. When asked by her attorney (twice) if Respondent Perez harassed Petitioner, Respondent Adams answered definitively, yes. She explained that he harassed everyone, but also denied that he harassed anyone. As Respondent Adams saw it, the relationship between Petitioner and Respondent Perez was that of two residents, not a resident and the park maintenance man. On occasion, though, Respondent Adams directed Respondent Perez to watch his language. One such occasion has been noted above; on another occasion, she said that Petitioner "has a name. It is Lisa. Use it." Respondent Perez's reference to Petitioner that prompted this directive is undisclosed. Respondent Adams also witnessed occasions during which Petitioner employed profanity toward Respondent Perez, as well as at least one other individual. On one such occasion, when a male tree-trimmer at the park warned Petitioner to keep a safe distance from his work area, she responded, "You son of a bitch. Drop a limb on me and I will sue you." It is difficult to characterize Respondent's state of mind at the time of his vulgar utterances, of which some, it is safe to assume, were uttered at Petitioner. The present record supports findings that Petitioner and Respondent Perez had a poor relationship. It is impossible to determine whether either party was at fault for this relationship or the degree of any fault that each party bore. However, from Respondent Perez's point of view, Petitioner's behavior was, on one occasion, substantially unjustified, as in the case of the removed PVC pipe from the yard, and, on another occasion, open to justifiable suspicion, as in the handling of the prescription medicines after Mrs. Miller's death. The present record supports a finding of abusive verbal exchanges between Petitioner and Respondent Perez, but not their frequency. If Petitioner's recounting of them were fully credited as all of them, there were very few such exchanges over the three years in question. Undoubtedly, Respondent Perez's swear words and other insults were grounded in gender relations or gender, as in his use of the words, "fuck" or "fucking," "bitch," and "whore." Respondent Perez was unable to direct a park visitor to move his car without uttering "fucking," employed either as an adverb to intensify the verb (i.e., "move") or an adjective to intensify the object (i.e., the "car")--or, of course, both. Most importantly, though, the present record in no way supports a finding that these exchanges were so frequent or intense as to deprive Petitioner of the use and enjoyment of her home and the amenities in the park.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 March, 2015. COPIES FURNISHED: Yaron M. David Properties Group Management, LLC 5810 U.S. Highway 92, West Plant City, Florida 33567 Rachel K. Beige, Esquire Cole, Scott and Kissane, P.A. 2nd Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) C. Martin Lawyer, III, Esquire Bay Area Legal Services, Inc. 1302 North 19th Street, Suite 400 Tampa, Florida 33605-5230 (eServed) Melissa Ann Craig, Esquire Bay Area Legal Services, Inc. 18238 U.S. Highway 301, South Wimauma, Florida 33598 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Lakewood Ranch Community Development District Seven (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue Whether a permit (DER File #411890893) should be issued to James R. Langford in accordance with the Notice of Intent filed herein.
Findings Of Fact In addition to the Department and the National Park Service, a copy of the Initial Order was mailed to: James R. Langford, 6008 Shore Acres Drive, N.W., Bradenton, Florida; and James R. Langford, c/o Benson Engineering, Inc., 311 67th Street West, Bradenton, Florida 34209. Benson Engineering, Inc., was agent for James R. Langford in presenting Langford's application to the Department. All Orders and Notices of Hearings including the Initial Order, mailed to James R. Langford at 6008 Shore Acres Drive, N.W., Bradenton, Florida by the Division of Administrative Hearings were returned by the U.S. Postal Service indicating that the forwarding order had expired. All attempts by the undersigned, including contacting Benson Engineering, Inc., to contact Langford by telephone were unsucessful. Benson Engineering, Inc. received Notice of the Hearing. Mr. Benson appeard at the hearing, and advised the undersigned that he was the agent for Langford in presenting Langford's application to the Department. However, there was nothing in the record where Langford had requested that Benson be allowed to act as his Qualified Representative and Benson did not present anything at the hearing. Therefore, Benson was not allowed to act as Langford's Qualified Representative. Langford did not appear at the hearing, and made no contact with the undersigned, or counsel for the Department or counsel for the National Park Service. Counsel for both the Respondent and the National Park Service attempted to locate Langford on different occasions but were unsuccessful. Counsel for the Department even contacted the real estate office that was handling the sale of the property subject to the permit application but was also unsuccessful in this attempt. There was no evidence presented in support of Langford's application for a permit to build the dock in question.
Recommendation Accordingly, upon the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Department enter a Final Order denying Respondent James R. Langford's application for permit, DER File Number 411890893. DONE and ENTERED this 24 day of August, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24 day of August, 1992. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Patricia Cortelyou-Hamilton, Esquire U.S. Department of the Interior National Park Service SE Regional Office 75 Spring Street SW Atlanta, Georgia 3030 James R. Langford 6008 Shore Acres Dr NW Bradenton, Florida 34209 James R. Langford c/o Benson Engneering Co. 311 67th Street W Bradenton, Florida 34209 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in the case is whether the Respondent’s suspension and eventual termination of the Petitioner from employment were in retaliation for complaints of sexual harassment made by the Petitioner against a co-worker.
Findings Of Fact The Petitioner began employment with the Respondent in October 1990 as an Automotive Service Worker in the maintenance department. At various times during his employment, there were between nine and eleven employees in the maintenance department. The Petitioner's responsibilities included mechanical work on the Respondent's police vehicles. At all times material to this case, the Petitioner's immediate supervisor was Chris Marinari. Ben Lacy, the Maintenance Division Director, supervised Mr. Marinari. At all times material to this case, Benjamin Lanahan was employed in the maintenance department and worked at the same facility as the Petitioner. Mr. Lanahan occasionally exhibited inappropriate behavior around the mechanic's shop, including exposing his sexual organs to co-workers and grabbing at their groins or buttocks. Mr. Lanahan exhibited such behavior in the presence of, and towards, the Petitioner. The Petitioner was offended by the behavior and on several occasions told Mr. Marinari of his objection to the behavior. Mr. Marinari apparently regarded the conduct as mutual "horseplay" and although he may have verbally instructed Mr. Lanahan to refrain from the behavior, he took no official action on Petitioner’s verbal complaints. The Petitioner received periodic evaluations throughout his employment. The Petitioner did not note his concern about Mr. Lanahan's behavior in the employee comment section of the evaluation form, but noted his apparent increasing satisfaction with the workplace. On April 15, 1992, the Petitioner was promoted to Auto Mechanic I. On December 8, 1993, the Petitioner was promoted to Auto Mechanic II. There is no evidence that the Petitioner filed any written complaints with his employer regarding Mr. Lanahan's behavior prior to his termination from employment. In May 1995, the Petitioner apparently became dissatisfied with Mr. Marinari’s response to his complaints about Mr. Lanahan’s behavior and took his complaint to Mr. Lacy. The Petitioner asserts that Mr. Lacy threatened to terminate his employment if he "made waves." Mr. Lacy denies that he threatened the Petitioner's employment. The Respondent's sexual harassment policy authorizes an employee to contact the Director of Human Resources if an employee believes that a supervisor has not adequately addressed a complaint. The Petitioner received a copy of the policy as set forth in the personnel rules. The Petitioner did not report the alleged threat by Mr. Lacy until 1996, when Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated for the reasons addressed herein. The greater weight of the evidence fails to establish that Mr. Lacy made the alleged threat to terminate the Petitioner's employment based on the complaint of harassment. Mr. Lacy investigated the Petitioner’s complaint and, determining it to be valid, issued a written disciplinary report against Mr. Lanahan in June 1995. Mr. Lacy and the Respondent’s Director of Human Resources recommended to the city manager that Mr. Lanahan’s employment should be terminated. The city manager did not accept the recommendation, and instead suspended Mr. Lanahan for two weeks without pay and required him to go to counseling. The Respondent also offered counseling to employees at the facility who had been subjected to Mr. Lanahan’s behavior. In August 1995, the Petitioner realized that, when attempting to cash a check, his driver's license had expired. He advised Mr. Marinari, who told him to take emergency vacation time to renew his license. The Petitioner renewed his license. Driving a city vehicle without a valid license is a "Group II" violation of the Respondent's personnel rules, and warrants a seven-day suspension without pay. The Petitioner received the suspension. He did not file a grievance at that time. The Petitioner eventually learned that some city government employees who worked in other departments and were found to be driving with invalid licenses apparently received lesser penalties for the infraction. The Petitioner then filed a grievance regarding his suspension, but the filing deadline had passed and it was dismissed. The Petitioner’s grievance did not raise the alleged threat by Mr. Lacy to terminate his employment for complaining about Mr. Lanahan. There is no evidence that the Petitioner's supervisors were aware of what other supervisors were doing at the time they suspended the Petitioner for driving without a valid driver's license. There is no evidence that the Petitioner’s suspension was related in any way to his complaint regarding Mr. Lanahan’s behavior. The Petitioner suggests that the Respondent, which maintained a database of relevant information in order to remind employees of license expiration dates, inaccurately informed him that his license was valid when it had expired. The evidence establishes that the Petitioner provided the inaccurate database information to the Respondent. There is no evidence that the Respondent knew or should have known that the Petitioner's license had expired. In September 1995, the Petitioner asked to be placed on "flextime" so that he could leave work early in the afternoon and pick up a child from school. Initially his request was denied because there were already two other employees working flextime, and the supervisor was concerned about the small shop not being fully staffed at normal hours. Within a few days, one of the other employees was returned to a regular work schedule and arrangements were made to allow the Petitioner to work a flexible schedule from 6:30 a.m. to 3:00 p.m. At the time the flextime request was approved, the Petitioner was advised that because he would start his workday an hour before the maintenance shop was otherwise staffed or supervised, it was necessary that he remain on task in order to complete work assignments. At some point around this time, the Petitioner found a piece of city equipment (an “A/C leak detector”) under the seat of his truck. He complained to Mr. Marinari, who questioned the Petitioner’s co-workers but was unable to determine how the equipment came to be in the Petitioner’s truck. There was no disciplinary consequence to the incident. During the time the Petitioner worked a flex schedule, the building maintenance supervisor also arrived for work at about 6:30 a.m. The building manager became aware that the Petitioner and the other co-worker on flextime would routinely leave the shop in a city vehicle shortly after arriving and “punching the clock” at 6:30 a.m. The building manager reported the practice to Mr. Marinari, who in turn told Mr. Lacy. On January 12, 1996, Mr. Marinari and Mr. Lacy arrived at the shop early enough to precede the Petitioner, and waited to see what would happen. The supervisors observed the Petitioner and the other co-worker arrive at about 6:30 a.m., clock in, almost immediately leave in a city vehicle, and then return with food at about 7:00 a.m. and eat breakfast. While the Petitioner and the co-worker went to get breakfast, the maintenance shop was unattended and unsecured. Prior to January 12, 1996, the supervisors were unaware that the flextime employees were taking a city vehicle to get breakfast while being "punched in" on the time clock. The Petitioner asserts that leaving work in a city vehicle for breakfast was a common practice. The evidence fails to support the assertion. The supervisors confronted the employees at the time the practice was discovered. Both employees were subsequently disciplined for the incident. The co-worker was suspended for a period of seven days without pay. Because the Petitioner had committed two "Group II" offenses within an eighteen-month period, Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated. The City Manager declined to follow the recommendation and instead suspended the Petitioner for a period of thirty days without pay. During the thirty-day suspension period, Mr. Marinari learned that the Petitioner had a statue in his backyard that was presumed to be city property. The source of Mr. Marinari's information is unclear. Mr. Marinari advised Mr. Lacy of the matter. Mr. Lacy investigated the report by driving by the Petitioner's house with the director of the city parks department, where they determined that the statue was similar to one kept at a city storage area. The matter was referred to the city police department. After investigation, a police investigator determined that the statue was city property. The investigator attempted to discuss the matter with the Petitioner, who suggested other city employees had placed it there at some earlier time. The Petitioner declined to identify the individuals he believed were responsible, and asserted that the whole incident was a conspiracy by people trying to "get him." The evidence fails to establish that other city employees placed the statue in the Petitioner's backyard. The statue was in the Petitioner’s possession for an undetermined period of time. There is no evidence to suggest that someone involved in a “conspiracy” to have the Petitioner’s employment terminated placed the statue in his yard. There is no evidence that the Petitioner reported to law enforcement officials the initial appearance of the statue in his yard. There is no evidence that the Petitioner attempted to identify or return the statue to the owner. The Petitioner asserts that the police investigator suggested that the Petitioner should resign to avoid prosecution for possession of stolen city property. The investigator denies the assertion. The greater weight of the evidence fails to support the assertion. Misuse of city property is a "Group III" offense, and pursuant to the personnel rules, is punishable by termination of employment. The supervisor recommended termination to the city manager. The Petitioner was suspended for five days pending an administrative hearing. Subsequent to the hearing, the city manager accepted the recommendation and terminated the Petitioner's employment effective February 6, 1996. There is no credible evidence that the termination of the Petitioner’s employment was a result of his complaints about Mr. Lanahan’s behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Human Relations Division, City of St. Petersburg, enter a final order dismissing the complaint of employment retaliation filed by Timothy Henault against the City of Pinellas Park. DONE AND ENTERED this 1st day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ 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 1st day of May, 2002. COPIES FURNISHED: J. Robert McCormack, Esquire Persante & McCormack, P.A. 2555 Enterprise Road, Unit 15 Clearwater, Florida 33763 Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701
