The Issue The ultimate issue is whether the Respondent, Sears, Roebuck and Company (Sears), engaged in an unlawful employment practice by discriminating against Petitioners Charlie Alphin, on account of age in violation of the Human Rights Act of 1977, Section 760.01 et seq., Florida Statutes.
Findings Of Fact Charlie Alphin, age 52, was employed by Sears in July, 1956, and was at the Pensacola, Florida, unit from August 1, 1968, to September 22, 1986. His date of birth is November 9, 1935. In August of 1968, Alphin was Hard Lines Merchandise Manager for the Sears Pensacola unit. This area included hardware, appliances, and all items except clothing and software. In September, 1984, Alphin was moved to manager of the auto center in the Sears Pensacola store. In June, 1985, Alphin was moved to manager of the home appliances division in the Sears Pensacola unit. Home Appliance divisions were numbered 3 and 57 and also called "Big Ticket" divisions. In June, 1985, Sears restructured their management program nationwide. The reorganization had been announced in January, 1985. Divisions within Sears stores were consolidated and the numbers of managers were reduced. As part of this reorganization, Sears offered the affected managers the opportunity to either be transferred into a sales managerial position, which would require additional hours at basically the same wages, or the option of early retirement. Sears offered all of its time card and check list employees the opportunity from March 25, 1985, through April 19, 1985, to elect early retirement (if they were over 50 and had over 10 years service) and to take 26 1/2 weeks severance pay and leave their jobs. The effect of the reorganization was to convert all time card managers to check list managers, to eliminate the positions of merchandise manager and division manager, and to reallocate responsibilities so that sales managers would have more direct contact with customers and employees on the floor. Prior to the effective date of reorganization, the manager of the Auto Center at Sears Pensacola retired. With knowledge that the reorganization was going to take place, Fred Kelly, the manager of the Sears Pensacola unit, offered the position of Auto Center manager to Alphin. Alphin had no prior experience in the Auto Center. Alphin became manager of the Auto Center in September, 1984. Alphin was eligible for the early retirement incentive, but elected not to take it. He stayed in the Auto Center as manager. Prior to the 1985 reorganization, the home appliance division was managed by two men, Mr. Walt Malone and Mr. Ron Parker. As a part of the reorganization, several managers opted for the early retirement. This left a void in the store for managers. To fill this void and because of Alphin's vast experience in the area, Fred Kelly moved Charles Alphin from the Auto Center manager position to be sales manager for the home appliances division. Annual employee evaluations occur at Sears in January of each year. In January of 1984, Alphin was evaluated for his work as merchandise manager. This evaluation was performed by Fred Kelly. Alphin's over all evaluation was very good, even though a deficiency was noted in the sale of Maintenance Agreements (MA's). In January of 1985, Alphin was evaluated for his work in 1984 at the Auto Center. Again, Alphin received an "over all very good" evaluation from Mr. Kelly. Between twenty-five and thirty-five percent of the gross sales of the entire store occur in the home appliances division of the Pensacola Sears store. Additionally, when Alphin became sales manager of the home appliances division of the Pensacola Sears he had the major responsibility for the sales of maintenance agreements as these fell predominately in the big ticket appliance items. When Alphin became Sales Manager of the home appliances division, he had approximately 40 employees working under him. On September 5, 1985, Alphin's son, Chris, was critically injured when he fell from a tree. Alphin had to take three of his eight accrued weeks of vacation time to be at his son's bedside. Mr. Alphin returned to work on September 30, 1985. In January of 1986, Alphin was evaluated pursuant to the annual evaluations process and once again received an "over all very good" evaluation from Fred Kelly. Also, in January of 1986, a fiscal inventory was taken of the Sears unit in Pensacola as well as in other Sears units. As a result of that inventory, a shortage surfaced and it was deemed necessary that an internal audit be conducted as a follow-up to that inventory. On February 24 - March 7, 1986, an annual internal audit was performed. The findings of the audit were very bad. In the audit, irregularities pertaining to Alphin's area of supervision were found: irregularity concerning Alphin's violation of Sears home demonstration policy; irregularity concerning price change/remarking activity. Price reductions for clearance merchandise in Divisions 3 and 57; irregularity concerning ordering goods for the big ticket divisions from the catalog; irregularities in the handling of sales floor maintenance agreement sales; irregularities in the handling of credit sales transactions in the big ticket divisions; and irregularities in Divisions 3 and 57 combining for an inventory loss of $143,000. The results of the audit were brought to the attention of Management staff in the Sears Pensacola unit. While some of the irregularities found in Alphin's departments had shown up on one or more of the three previous annual audits, no previous audit had contained so many serious irregularities in the big ticket divisions. On February 6, 1986, J. H. Hudspeth, Regional Merchandise Manager for Sears visited the Sears Pensacola unit. As a result of that visit, Mr. Hudspeth found the conditions of Alphin's stock rooms deplorable and, because conditions were so bad, he felt he should write a formal report to make it part of Alphin's file. As a result of this visit and letter to Fred Kelly, the store manager, Mr. Kelly discussed these deficiencies with Mr. Alphin. Mr. Kelly specifically discussed with Alphin that the stockroom conditions were costing Sears "an arm and a leg" because of the damaged goods and uncrated goods that he had in his inventory. In March of 1986, Dave Davis, Regional Personnel Manager, discussed the results of the audit and inventory with Mr. Kelly. Davis specifically discussed the irregularities that had surfaced within Alphin's area of responsibility and discussed Ray Bacot and two other employees, Buddy Lambert and Fred Stuck. Alphin was called in individually to discuss the irregularities of the audit when the Regional Manager, Don Jones, visited Sears Pensacola unit in March, 1986. Raymond Bacot, the operations manager of the Sears Pensacola unit, was also called in and counseled regarding the results of the audit. As a result of the audit, it was determined that two senior management employees, Fred Stuck and Buddy Lambert, had, of their own volition, established the retail selling price on a piece of merchandise. This was an unauthorized mark down, a violation of Sears policy, which ultimately resulted in the termination of both Mr. Stuck and Mr. Lambert. Mr. Kelly made the decision to terminate Mr. Stuck and Mr. Lambert. Mr. Stuck and Mr. Lambert were terminated because of the dishonesty that was brought to the store manager's attention. Both Stuck and Lambert were over age 40 at the time of the termination. However, age was not a factor in Mr. Kelly's decision to terminate Mr. Lambert and Mr. Stuck. Age was never a factor in Mr. Davis' decision to approve the termination of Mr. Stuck and Mr. Lambert. As a result of the audit, three employees of the Sears Pensacola unit (Fred Kelly, Raymond Bacot, and Alphin) had their annual evaluations recalled and these employees were subsequently reevaluated. In this case, the fiscal inventory was not taken until February in which the irregularities surfaced. Because of the nature of the irregularities, Mr. Davis instructed Fred Kelly to take another look at Alphin's and Bacot's performance evaluations for the prior year. Along with Alphin's and Bacot's evaluation being recalled and reevaluated, Fred Kelly's evaluation was also recalled and reevaluated. All three of these employees received poor ratings for their performance level. It is not unusual to have an employee's evaluation recalled and reevaluated. Since being Regional Personnel Manager in New Orleans, Mr. Davis has reevaluated approximately fifteen to twenty employees' evaluations. Along with the revised employee evaluation, Alphin also received a Memorandum of Deficiency Interview (MDI) dated April 1, 1986. Fred Kelly and Raymond Bacot also each received a Memorandum of Deficiency Interview. Mr. Kelly specifically covered the areas that were mentioned on the MDI with Alphin. Mr. Kelly did not ask Alphin to resign at any meetings concerning his reevaluation or his MDI. In April of 1986, Alphin asked Mr. Kelly that if he should chose to resign, would Sears pay him a service allowance. Mr. Kelly spoke to Mr. Davis regarding this request and Mr. Davis indicated that if Alphin chose to resign, Sears would approve the payment of a service allowance based on Alphin's length of service which would have amounted to ten weeks of pay. On May 8-15, 1986, a traveling audit follow-up was conducted in the Sears Pensacola unit. The traveling follow-up audit revealed irregularities pertaining to Mr. Alphin's area of supervision: irregularity concerning sales floor maintenance agreement sales; and irregularity regarding proper procedure not being followed in the big ticket divisions for credit sales transactions. The results of the follow-up audit were discussed with Mr. Alphin. On June 23, 1986, the store manager, Fred Kelly, administered another Memorandum of Deficiency Interview to Alphin. Mr. Kelly counseled Alphin regarding sales check procedural violations as they pertained to the credit transactions and to the maintenance handling. Additionally, there was counselling regarding the deplorable condition of Alphin's stock rooms. Mr. Kelly counselled Alphin on a day to day basis regarding the routine running of his business between the first MDI on April 1, 1986, and the second MDI on June 23, 1986. During this time, Mr. Kelly saw that Alphin was not improving. During June of 1986, store employees under Mr. Alphin's supervision came to Mr. Kelly seeking guidance because they could not locate Mr. Alphin. Mr. Kelly directed Alphin as to specific store hours that he was to remain on the floor in his department. These hours were in keeping with company direction and regional direction to make the goal of 70% visibility of sales managers on the floor. Mr. Alphin spent a lot of time during working hours in the coffee shop. Ms. Yochim, on several occasions when looking for her supervisor, Charlie Alphin, would find him in the coffee shop smoking cigarettes. During July of 1986 and the first part of August of 1986, the store manager, Mr. Kelly, did not see any improvement by Alphin in the area of his overall responsibilities to the stock rooms. Additionally, he did not exhibit a positive attitude towards work. On August 14, 1986, Mr. Kelly administered a third Memorandum of Deficiency Interview. The Memorandum of Deficiency Interview indicated that Alphin had made no significant improvement over the past two months in his stockroom housekeeping. His stock areas were sub-par and unsatisfactory. On August 27, 1986, Alphin was administered a fourth Memorandum of Deficiency Interview. Alphin was criticized for his lack of follow through that jeopardized effective monitoring of his employees' productivity and the store management's ability to maintain an effective and credible monitoring program. He was told his continued lack of involvement and attitude on the part of a staff employee in carrying out management responsibilities could not be tolerated. It impaired overall staff effectiveness. He was not performing satisfactorily as a member of management's staff. From the period of April 1, until August 27, Mr. Kelly did not ask Alphin to resign from Sears. In September of 1986, Mr. Kelly made the decision to terminate Charlie Alphin. Mr. Kelly discussed this decision with Dave Davis, the regional manager, indicating that Charlie Alphin's performance had continued to deteriorate and that he had made the decision to terminate Alphin. Mr. Davis approved, agreed with, and supported Mr. Kelly's decision to terminate Charlie Alphin. Age was not in any way a factor in Mr. Davis' approval of Alphin's termination. Age was not a factor in Mr. Kelly's decision to terminate Alphin. Mr. Alphin was never told that age was the reason he was being terminated. At the time of his resignation on September 22, 1986, Mr. Kelly called Alphin in and discussed the fact that Mr. Kelly had not seen any improvement and that Alphin's involvement was not present and that he was terminating Alphin's employment. After Alphin's termination, Mr. Davis looked for a replacement for Alphin. Davis transferred Jerry Brigante, a sales manager in Ft. Walton Beach, to the Pensacola retail store to replace Charlie Alphin. Mr. Brigante was chosen for that position for a couple of reasons: (1) He wanted to be considered and moved to another management assignment in another Sears unit; and (2) Because of the proximity of Ft. Walton Beach to Pensacola, it was a relatively inexpensive move from the company's perspective. Mr. Brigante was 51 years old at the time and had 31 years of service with Sears. Mr. Brigante accepted and arranged an interview date with Mr. Kelly. Mr. Kelly interviewed Mr. Brigante and offered him a job in the Pensacola unit. Mr. Brigante accepted the job promotion. Mr. Brigante actually worked only one day in the Sears Pensacola unit. In November of 1986 Mr. Brigante called Dave Davis and told him he could not handle the job in Pensacola. He indicated he had given some thought to leaving Sears and wanted to stay in the Ft. Walton Beach area. He told Mr. Davis that he wanted to retire effective that date. The next morning Mr. Brigante called Mr. Davis and indicated he wished to recant his resignation from the previous day. Mr. Davis did not allow him to recant his resignation and indicated there was already a replacement on his way to Pensacola. Mr. Kelly is fifty-four years old. In the reorganization, employees Stallworth, Anderson and Townsend were transferred to sales positions in the Sears Pensacola unit. There was no pressure brought on these individuals to accept these transfers. These positions offered them a chance to make more money. Other employees were also moved to the sales floor. None of these individuals expressed any dissatisfaction with being transferred and reassigned. The retirement incentive was available to other persons over age 40. Several of them chose to take early retirement. Specifically, Mr. Mosely, Mr. Thompson, Ms. Wehmeier, and Mr. Peklo voluntarily chose to take early retirement and did not have any pressure put on them to retire. Some older employees retired based on their fear that their jobs were in jeopardy, but no credible evidence supported these unbased beliefs. The reason for Alphin's discharge was his poor performance. Sears did not terminate Alphin because of his age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying the relief sought by Charlie Alphin and dismissing the Petition for Relief. DONE and ORDERED this 15th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1446 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Charlie Alphin 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of act: 1(1); 4(2); 8(6); 9(7); 14(8); 18(15); 21(9); 22(10); 23(5); 25(16); 28-30(12-14); 31(4); 32 (14); 33 (4); 34-37 (17-20); 40(1); 41(21); 52 (31); 55(35); 63(38); 65(39); 71(41); 89(44); 90(48); 93(55); 96(56); 102(64); 109(65); 110(66); and 121(73). 2. Proposed findings of fact 2, 3, 6, 11-13, 24, 38, 39, 42-51, 64, 66-68, 72-75, 77, 79, 81, 82, 86, 87, 88, 92, 95, 97, 101, 106, 111, 114, 119, and 120 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 15, 53, 56, 57, 61, 62, 69, 70, 78, 80, 83, 108, and 115-117 are irrelevant. 4. Proposed findings of fact 10, 16, 17, 27, 54, 58-60, 76, 84, 85, 91, 94, 98-100, 103, 107, 112, 113, and 118 are rejected as being unsupported by the credible, competent and substantial evidence. 5. Proposed findings of fact 5, 19, 20, 26, 104, and 105 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sears, Roebuck and Company Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 6(7); 7(11); 8-11(73); 12-16(22-26); 17(31); 18(32); 19-21 (28-30); 22-25(33- 36); 27(37); 28(15); 29-55(38-64); 57-64(65-72); 65(74); and 65(75). Proposed findings of fact 26 and 56 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Dawn Wiggins Hare Ross M. Goodman Attorneys at Law 226 South Palafox Street Pensacola, Florida 32501 Tracey I. Arpen, Jr. Linda C. Ingham Attorneys at Law Post Office Box 447 Jacksonville, Florida 32201 Office of the Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 20 Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Commission on Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida
Findings Of Fact On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home. At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13. Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet. Because of the topography and insects this area is not popular for picnicking. Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye. While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some 500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating. Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply. When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33). The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician. Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing. After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith. Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith. The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign. Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974, and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred. A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so. The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police. Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars. Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report. Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced. Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct. Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
Findings Of Fact On or about October 25, 1982, Respondents filed with Respondent County an Application for Preliminary Development Plan Review including Zoning, an Application for Final Development Plan Review including Zoning, and a General Application for a Major Development Project known as Spoonbill Sound on Cudjoe Key, Monroe County, Florida. On or about January 28, 1983, Respondents submitted an Environmental Designation Survey, Community Impact Statement and Preliminary Development Plan for Spoonbill Sound pursuant to the requirements of Sections 6-221 through 6- 245, Monroe County Code, the Major Development Project Ordinance. The Spoonbill Sound property consists of approximately 55.38 acres. U.S. Highway No. 1 approximately bisects the property. The 26.29-acres half of the property lying north of U.S. Highway No. 1 consists of a vegetated preserve and an unnamed water area. As such, the northern half of the Spoonbill Sound property is unlikely to be buildable. The 28.94 acres half of the property located south of U.S. Highway No. 1 has a 16.01 acres strip of upland which extends the length of the property contiguous to Cudjoe Bay. The entire area between U.S. Highway No. 1 and the upland area contiguous to Cudjoe Bay consists of a land-locked lake and a red mangrove preserve. Stated differently, approximately 40 acres of the site is wetlands, and only that portion adjoining the Bay holds the possibility of being developed. That upland area of 16.01 acres is comprised of a late-successional tropical hardwood hammock dominated by tropical low-hammock trees including significant numbers of buckthorn, gumbo limbo seagrape, pigeon plum, Jamaica dogwood, and Spanish stopper. Virtually the entire site is vegetated, and the canopy is closed. Respondents propose to subdivide the 16.01-acres upland portion of the site into 26 lots of approximately one-quarter to one-half acre each, with each lot being approximately 100 feet wide. Respondents have already cleared an east-west oriented road the length of and in the middle of the upland area pursuant to a permit issued by Respondent County. The lots are spaced on either side of that cleared roadway, with 13 lots running along the north edge of the roadway, and 13 lots running along the south edge of the roadway. Respondents proposed to sell 25 of those lots for duplex development. The 26th lot, which covers the southwest corner of the property, will be developed as a common area with parking lot in conjunction with a proposed dock extending into Cudjoe Bay and in conjunction with a nature walk and bird observation platform proposed for the land-locked lake. Other than the "amenities" and private road, Respondents do not propose to develop the residential improvements. On or about January 25, 1984, Respondent County adopted Resolution MD 1-84 approving Respondents' Major Development, Final Development Plan, Final Community Impact Study, and Final Change of Zoning from GU to RU-2 for Spoonbill Sound. The only condition contained in that Resolution is that Respondents obtain all required certifications prior to construction of the proposed dock. The dock proposed at the southwestern tip of the development will extend into Cudjoe Bay 155 feet waterward of the mean high water line and will be a total of 190 feet in length and 8 feet wide. The dock will have an 8 by 80 foot L-shaped extension on the seaward end and will incorporate 9 mooring pilings and 8 boat slips for a total 2,160 square feet of dock area. The depth at the seaward end of the proposed dock site, in the area of the boat slips, at mean low water is 2 1/2 to 3'. On or about May 4, 1983, the Board of Adjustment of Respondent County denied the request of Respondents for a dimensional variance for the dock. At that hearing, prior to denial of the variance, Respondents sought to withdraw their variance application on the ground that no variance was required by Monroe County ordinance. That request was denied by the Board of Adjustment. On or about November 7, 1983, the County Attorney for Respondent County rendered an opinion that the 100-foot length limitation set forth in Section 19-101(b) of the Monroe County Code did not apply to a dock to be built in an RU-2 subdivision. At the time of the final hearing in this cause, Respondents' application for a permit to construct the dock had been denied by the Florida Department of Environmental Regulation. Additionally, the Florida Department of Natural Resources had withdrawn its earlier authorization for Respondents to construct the dock over the Bay bottom. Cudjoe Bay is extremely shallow and does not presently have significant boat traffic. The depth of the bottom is generally -1 to -2' mean low water (MLW) to a distance of approximately 1500' from shore. Moving further southward, -3' MLW depth is reached some 1500 to 2000' from shore. The 4' depth, MLW, is approximately 2500' or nearly a half-mile from shore. The Cudjoe Bay bottom in the vicinity of the proposed dock consists of varying thicknesses of marine grasses, marine algae, many sponges and hard corals. Marine grasses are not quite as thick at the end of the proposed dock, as compared with areas closer to the shore and to the east of the dock, but in these areas of fewer grasses there is an abundance of sponges. The Bay bottom in the vicinity of the dock is very much a "live bottom," with a large number of marine organisms present, as contrasted to, for example, a sand bottom. Marine animals observed in the vicinity of the end of the proposed dock are sponges, hard shallow water corals, lobsters, extensive schools of bait fish, juvenile fish, jellyfish, starfish, sea anemones, sea urchins, and various algae. Corresponding to the Respondents' estimate of boat ownership by the future Spoonbill Sound owners (that one-half of the 50 future families will own boats), Respondents originally sought dock mooring facilities for 25 boats. In order to obtain approval, Respondents later amended their proposal to the current proposal of 8 slips only. As currently proposed, Respondents intend that the dock will be utilized as a transitory platform for residents only and that boats would either be stored at the dwellings or in the several nearby marina facilities and would not be permanently moored at the dock. They speculate that the dock would thus be used as a convenience only, so the residents can make short trips back to their dwelling units to drop off fish or to pick up and drop off supplies or fishing tackle. In additional recognition of the concerns of agencies regarding protection of the marine plants and animals, Respondents propose restrictions on the use of boats in the vicinity of the dock. Respondents propose to limit the number of boats using the dock at any one time to 8 boats by installing only 8 slips and by placing a rail on the inside portion of the dock to prevent people from tying boats along the length of the dock other than where the 8 slips are located. Respondents further propose some system of marking the most favorable ingress and egress channel to the dock so as to limit the damage to marine plants and animals and further propose attempting to limit speeds of boats approaching or leaving the dock. None of Respondents' proposals of restricting permanent mooring at the dock, limiting the number of boats using the dock at any one time to 8, restricting the mooring of boats along the dock to the location of the 8 slips only, locating and marking a channel, or of restricting damage by imposing speed limits exists as conditions to any permit or approval from any regulatory agency. Respondents propose instead to place authority for the creation and enforcement of those proposed restrictions in the hands of a homeowners association composed of the future residents of Spoonbill Sound. There are presently no written regulations encompassing any of Respondents' proposals. The evidence is clear that Cudjoe Hay is an inappropriate place for a dock such as that proposed at Spoonbill Sound due to the shallow water depth and that the location of the proposed dock is a difficult and hazardous place to operate a motor boat. The expert witnesses agree that there would be some damage to and removal to marine plants and animals by the operation of boats in the vicinity of the dock even if the proposed safeguards came into existence in an enforceable and written form. While there was testimony that damage to the marine plants and animals on the Bay bottom would be minimized by strict adherence to the proposed safeguards, there is little likelihood of success for the following reasons. First, the potential violators of the safeguards are the proposed enforcers. Second, Respondents themselves expect a 50 per cent boat ownership by Spoonbill Sound dwellers. Even if no resident chose to tie a boat at any point along the dock other than in one of the eight slips, if those eight slips are full at any given time, it is reasonable to assume that additional boats will be driving around the shallow area waiting for their turn to use one of the slips. Third, there is no evidence regarding enforceability of the proposed restrictions on boat usage, and all of the proposed safeguards must be enforced at all times in order to prevent more than minimal removal and injury to the marine plants and animals in the vicinity of the proposed dock. As a practical matter, notwithstanding any rules and regulations which may or may not be adopted by the homeowners association, there would most likely be little enforcement of the proposed safeguards relating to use of the dock other than an economic incentive, for instance, to avoid propeller damage. Therefore, usage of the dock would most probably result in more than minimal damage to and removal of marine grassbeds and marine animals in Cudjoe Bay. Further, the evidence suggesting minimal impact to the marine plants and animals by strict adherence to the proposed safeguards is based upon the erroneous premise that eight boats will use the dock. Rather, there will be an unknown number of boats making an unknown number of trips to and from the eight slips located at the dock or driving around waiting their turn. There is no evidence of any assessment of impact due to the actual anticipated usage of the dock by the expected regular movement of boats to and from the dock area. Although proposed deed restrictions suggest that no other applications shall be made and no additional docks shall be constructed at Spoonbill Sound, those deed restrictions, if they ever become effective, are enforceable only by the proposed homeowners' association, which is also given authority in that same document to modify or repeal any deed restrictions. Further, the proposed restrictions carry no penalty for violation. A thickly vegetated West Indian tropical low hardwood hammock covers 12.50 acres of the Spoonbill Sound 16.01 upland area. The hammock contains a large number of rare and endangered plant species scattered throughout with very dense distribution of individual trees. The site also contains a number of solution holes in the limestone rock substrata inundated with brackish water which provide wetland habitat on the hammock site. These sinks contain a threatened species of leather fern. The only man-made alterations to the hammock are the road cut through the middle by the Respondents, some trails, and some trash deposited in some areas. Lower Keys tropical hardwood hammocks do not attain the canopy height of those hammocks in the Upper Keys. This is due to lower elevations in the Lower Keys precluding larger plant litter build-up with its accompanying greater moisture retention for utilization by the plants, and there is less rainfall in the Lower Keys. Although this particular tropical hardwood hammock consists of second growth following a fire or some other past disturbance, vegetation in this hammock has stabilized, and the only change which will take place over time is that the trees will get thicker. Over time, however, species composition will not change much nor will the canopy increase in height. The hammock is thus at climax or at least late-successional. Lower Keys tropical hammocks are nonetheless extremely valuable habitat for such endangered or threatened animals as white crown pigeons, 12 of which were observed feeding on site, great white heron, brown pelican, osprey, and Keys raccoon. Numerous other birds have been observed on site or are expected to utilize the site. The Spoonbill Sound hammock with its unique combination of fresh water areas, semi-fresh water areas, and salt water areas provides a great deal of potential habitat for a large number of rare and endangered animal species. The semi-fresh water wetlands in the hammock alone provide for the Lower Keys a very diverse animal habitat. As set forth above, Respondents will not be responsible for the construction or placement of the 25 duplexes in their proposed subdivision. Rather, what is built and where is left to the proposed homeowners' association under the proposed deed restrictions which can also be modified or repealed by that same homeowners' association. The proposed deed restrictions do not provide for their enforceability by anyone other than the potential violators. Each lot carries one vote except for those lots still owned by the Respondents who have retained three votes for each lot owned by them. Therefore, a review of the impact of the entire project on the natural resources systems of the Spoonbill Sound site is impossible since the actual development of each lot is speculative at this time. Similarly, the amount of hammock to be cleared in the Spoonbill Sound subdivision is unknown. While the proposed deed restrictions limit the amount of clearing to be done on each lot to no more than 30 per cent, Respondent Kephart testified as to his interpretation of the term "clearing" which will take place in the Spoonbill Sound hammock. Under his definition, only total eradication constitutes clearing; removal of all underbrush and the cutting back of branches only constitutes pruning and is therefore not prohibited. Accordingly, Spoonbill Sound, as proposed, fails to provide for the preservation of the hardwood hammock. While the Spoonbill Sound upland area to be developed consists of 16.01 acres, the upland hammock zone was surveyed at 12.50 acres. Subtracting the recreational, parking, and the road areas, the net hammock area available for development is 8.95 acres. If 30 per cent of the lots can be cleared using the normal definition of that word, the remaining hammock area following development will be 6.265 acres plus a 1.38 acre median strip in the road leaving 7.645 acres out of the original 12.50 acre hammock or approximately 60 per cent of the original hammock following development. If Respondent Kephart' definition of the word "cleared" is utilized, it is unknown how much of the hammock area will remain following development, but substantially less than 60 per cent is probable. Developments such as is proposed for the Spoonbill Sound will allow easy intrusion by exotic plant species such as Australian pine and Florida holly. The wildlife habitat value of this site after development will be severely degraded not only due to direct human activities in the area but also because the development proposal does not call for preservation of large blocks of contiguous hammock. The result will be that potential for nesting, rooting, and foraging in the area following this development will be severely curtailed and most of the species--including the rare and endangered ones--will migrate away from the site. This will occur despite the fact that tree species preserved following construction may do quite well. Placement of residential improvements clustered in a manner that would increase the amount of contiguous, undisturbed hammock on the property above what Respondents propose would maximize the potential that indigenous wildlife would utilize the hammock. There is nothing in Respondents' proposal for the development of Spoonbill Sound, with the extra regulation imposed by its location within an Area of Critical State Concern, that makes it any different from the traditional development of utilizing maximally a piece of property by slicing it into 100' wide lots located up and down the side of a roadway constructed through the middle of the development although the Area of Critical State Concern designation had been in place in the Florida Keys for many years before Respondents purchased the property in late 1981 or early 1982. The Spoonbill Sound property is located within a 100-year flood prone area, and the 25 duplexes expected to be erected on that site will, accordingly, need to be elevated eight feet. Respondents propose that' septic tanks will be utilized for the duplexes until the project reaches 50 per cent buildout. At that time, a sewage treatment plant will somehow become erected on the 26th lot, the same lot which houses the landward end of the dock, the 12-car parking lot, and the beginning of the nature walkway which continues in a northerly direction past the last duplex lot and into the land-locked lake where it terminates in a 15' by 15' observation platform. Since Respondents are not required to seek septic tank permits at this time, no evidence was presented regarding the impact of the 12 or 13 septic tank systems to be located on the duplex lots contiguous to the Bay or on those lot contiguous to the red mangrove preserve or land- locked lake. Likewise, no evidence was presented as to the impact of any proposed sewage treatment plant located on the Bay-front lot which also serves as the community recreation area. Lastly, no evidence was introduced as to the impact of the nature walkway, elevated boardwalk, or observation platform to be located inside the land-locked lake on the wildlife currently abundant there. The actual development of Spoonbill Sound is speculative, and its impact on the land-locked lake, the red mangrove preserve, the tropical hardwood hammock, and Cudjoe Bay when it is built is unknown.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing the Monroe County Zoning Board's Development Order Resolution No. MD 1-84 and denying development approval for the Spoonbill Sound Major Development. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983), it is further recommended that the Final Order require the following changes in any development proposal for Spoonbill Sound: No docking facility be approved; All units and associated facilities be clustered in such a way as to absolutely maximize the amount of contiguous, undisturbed hammock on the Spoonbill Sound site; All units and associated facilities be located as close as possible to existing access roads, and the remainder of the hammock be left as undisturbed as possible; Any future review by Monroe County of any revised development plan be made in accordance and full compliance with Chapters 27F-8 and 27F-9, Florida Administrative Code, with the Monroe County Code, and with the Monroe County Comprehensive Plan; and Any future review of any revised development plan consider the cumulative impact of the entire project, including the impact of septic tanks and the sewage treatment plant on the hardwood hammock, the adjoining red mangrove preserve, the land-locked lake, and on Cudjoe Bay itself. DONE and RECOMMENDED this 28th day of June, 1985, at Tallahassee Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood Attorney at Law County Attorney's Office 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire 317 Whitehead Street Key West, Florida 33040 E. Lee Worsham, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahssee, Florida 32301 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether the Department of Environmental Protection's proposed Rule 62N-22.005, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
The Issue The issue for determination is whether Petitioner was subjected to a hostile work environment condoned by Respondent due to Petitioner's race and sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by the Auditor General, Division of Public Assistance Fraud. That program, along with Petitioner, co-workers, and the persons in her chain of command, were later legislatively transferred to the Florida Department of Law Enforcement. On January 28, 1999, Petitioner filed a complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that the State of Florida, Office of the Auditor General discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01- 760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's race (African- American) and sex (female). Petitioner claimed that Respondent's actions created a hostile work environment as a consequence of her race and/or sex. Petitioner has not been demoted, reassigned, or terminated by her employer. Petitioner complained of certain events that occurred in 1994 regarding the assignment of particular cases. She alleged that she was not being fairly treated in the assignment of pending cases. These events, which occurred in 1994, are time-barred from further consideration by virtue of Section 760.11(1), Florida Statutes, which requires filing of a complaint within 365 days of occurrence of an alleged violation. On one occasion on an unspecified date during her employment, a co-worker asked Petitioner whether her ponytail was real. On March 11, 1998, Regional Supervisor William Martin, a white male, typed a memorandum for Petitioner. The memorandum was precipitated by a conference between Petitioner and her immediate supervisor in which procedures regarding work hours, breaks, and lunch hours were discussed. Petitioner was told in the course of the conference that some staff members perceived Petitioner as "not playing by the rules." Petitioner responded through the memorandum typed by Martin. The memorandum set forth Petitioner's complaints concerning her work situation, inclusive of her observation that others were committing the same violations of policy of which she was accused with no repercussions occurring to them. Petitioner had the opportunity to review a draft of the memorandum and made corrections to the draft. Petitioner then signed the final version of the memorandum, which included Petitioner's express declination to pursue the matter further, stating that she "wanted my personal concerns and feelings on record." Nowhere in the memorandum does Petitioner allege that she has been treated differently on the basis of her race or her sex. There are two supervisors in Respondent's Jacksonville, Florida, office. Petitioner’s immediate supervisor is Laverne McKinney, an African-American female. The other supervisor in the Jacksonville office is Stan Stephens, a white male. The relationship between Stan Stephens and Petitioner is strained. The strained relationship is not due to racial or sexual discrimination. On one occasion during Petitioner's employment, Stan Stephens asked Laverne McKinney to instruct Petitioner to let him know when Petitioner would not be available to work until 5:00 p.m., so that the office could be properly manned until that time. The request followed an incident when Stephens, who usually leaves the office at 4:30 p.m., was unable to find someone to mind the office when he left. Unknown to Stephens, Petitioner had left early to perform official business for Respondent. On another occasion during Petitioner's employment, while Laverne McKinney was the designated "Acting Regional Supervisor," Stan Stephens called William Martin, a former supervisor at the time, on a travel issue regarding Petitioner. Martin was working in Respondent's Miami, Florida, office at the time and McKinney was away from the Jacksonville Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2008.
Findings Of Fact Petitioner was hired by Respondent in January, 1986, as a dishwasher at $4.00 per hour. Because of his good work and dependability, Petitioner received periodic increases in his rate of pay, and in May, 1987, he became head dishwasher at $6.00 per hour. Respondent's owners also own certain apartments located next to their restaurant, and since Petitioner had been a dependable employee, he was given the additional responsibility of showing these apartments when anyone wanted to rent one that was vacant. He also performed repair and maintenance work on the apartments Petitioner was allowed to take time off from his job as head dishwasher to show vacant apartments, and was periodically assigned work to do on the apartments when he was not working at the restaurant. Petitioner agreed to, and was readily willing to perform these additional duties for which he was allowed to live in one of these apartments for $15.00 per week, rather than the normal rate of $65.00 per week. Beginning in October, 1987, Petitioner began to call in sick to his job at Respondent on a regular basis. Between the week of October 18, 1987, and his termination on January 12, 1988, he did not work a full forty hour week. This was during Respondent's busy time when business was especially heavy, and was a great inconvenience to other staff and the owners of Respondent. Frequently, Petitioner gave virtually no notice of his absence. Due to his repeated absences, and his lack of dependability, Respondent terminated Petitioner on January 12, 1988. Thereafter, Petitioner timely filed a complaint of discrimination with the City of Clearwater, Office of Community Relations. Petitioner introduced no evidence in support of his allegation of discrimination based upon race. He alleges that a white woman was hired to replace him, but he did not identify her, or in any way corroborate his charge. Respondent disputed this allegation, and denied that Petitioner's discharge was due to anything but his repeated absences and increasing lack of responsibility. There is absolutely no evidence that Petitioner was terminated based upon racial considerations.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Office of Community Relations, enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988. COPIES FURNISHED: Amyer Jones 1343 San Remo Street Clearwater, Florida 34616 Richard R. Logsdon, Esquire 1423 South Ft. Harrison Street Clearwater, Florida 34616 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618 Ronald McElrath, Director Office Of Community Relations Post Office Box 4748 Clearwater, Florida 34618
The Issue At issue is whether the Respondent committed the offenses set forth in the Amended Administrative Complaint dated October 25, 2000, and if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Battles was employed as a physical education teacher and head football coach at Gardens. He was popular with students and enjoyed a good relationship with his principal. Battles' first full year as head coach began with the 1997-98 school year. At that time Battles was 33 and was an experienced teacher, having taught in Florida schools for a decade. In the spring of 1998, a 14-year-old ninth grader at Gardens, Stephanie Carbone (Carbone), developed an infatuation with Battles. She confided her crush to one of her classmates and girlfriends, Barbara Borucki (Borucki), who promptly communicated the information to Battles. Very shortly after that conversation, Battles commenced a sexual relationship with Carbone. Their initial sexual contact consisted of kissing and fondling. The relationship continued for under two months. During that time, Battles and Carbone had sexual encounters two or three times a week. Right around the time the relationship began, Carbone volunteered to be a student manager for the football team. Taking advantage of Carbone's fixation on him, Battles facilitated an improper relationship with her by allowing her to volunteer, and assigning her to duties which would involve being alone with him in areas of the school gym which he was able to lock and render inaccessible to third parties. Battles and Carbone engaged in sexual activity in the coach's office, the equipment room, and the shower area of the gym. Their relationship and their encounters, which were clearly and convincingly described at the final hearing by Carbone, are best described as pathetic. The relationship consisted of kissing, groping, fondling, giving and receiving oral sex, digital penetration, or some combination thereof, for periods of short duration during or after the school day, two or three times per week. On one occasion, the two unsuccessfully attempted intercourse. Carbone's memory with respect to minor details of the relationship was imperfect, but not inconsistent with what would be expected of a witness testifying truthfully from memory as to emotionally charged events which occurred three years ago. The undersigned fully credits the testimony of Carbone as to the existence of the relationship, and the nature and frequency of the sexual contact between her and Battles. The undersigned carefully observed Carbone's demeanor under oath. In her direct testimony and on cross-examination, she was unflinching. There is no evidence that she committed perjury for the purpose of harming Battles, or due to a mental illness, nor for any other reason. Carbone was candid and unsparing of herself as she described how she had thought she was in love with Battles, and how she had initially been the aggressor and invited his attentions. When the relationship eventually became known to school authorities, Carbone at first denied its existence, in order to protect Battles. Before, during, and after the relationship began, Battles was well liked by Carbone and by her friends. There is no evidence that Carbone nor any of her friends desired to "set him up." There is no evidence that Carbone has any financial stake in proving the existence of the relationship. Nor is there any plausible explanation of why she would perjure herself in order to injure Battles. Although at some point in the relationship, Carbone came to be uncomfortable, knowing that sex with a teacher was wrong, her testimony clearly and convincingly establishes that she would have kept up her end of the relationship for at least some additional period of time, had she not first been confronted by school authorities. The confrontation came about six to eight weeks into the relationship. Battles was a married man, and at the start of the relationship had instructed Carbone to keep whatever happened between them a secret. Carbone disobeyed that instruction from the start. Instead, she shared their "secret" with one friend at a time. By May 4, 1998, Gardens Principal Paul Houlihan (Houlihan) had heard a rumor that there was an improper relationship between Battles and Carbone. Coincidentally, on that same day, Carbone's mother brought her or Carbone to Houlihan's office. Mrs. Carbone was upset because she had found her daughter off campus in a van with other students. During that meeting, Houlihan asked Carbone about the rumors that she was involved with a teacher. Initially, Carbone denied involvement with Battles by name, even though Houlihan had not mentioned the name of any particular teacher. Houlihan and Carbone's mother did not credit Stephanie's denial, in part because of her demeanor as she denied the allegation, and in part because Stephanie was the first to use Battles' name. The following day, Houlihan confronted Battles. Battles did not deny the existence of a relationship. Instead, he expressed two thoughts: fear that his wife would leave him on learning of the allegations; and concern for what impact the allegations would have on the football team. Carbone's story is corroborated in some aspects by the testimony of fellow students who had opportunities to observe how Carbone's "volunteer work" for the football team provided cover for her relationship with Battles. For example, classmate Josh Knight (Knight) would on occasion accompany Carbone to the gym and wait with her outside until the football team left, usually to go to the weight room, at which time Battles would wave her in and close and lock the doors behind them. The undersigned carefully observed the demeanor of Knight and each of the other students who testified regarding their observations of Battles and Carbone, as well as about things Carbone had told them about the relationship. Based upon the demeanor of the student witnesses under oath; how they handled themselves during cross-examination; their lack of a financial stake in the outcome; the fact that they had no difficulties with Battles as a teacher and otherwise lacked any apparent motive to harm him; and the lack of any other plausible motive to commit perjury, the undersigned credits the testimony of Carbone's friends as substantially accurate accounts of what Carbone told them contemporaneously during the time she was involved with Battles, as well as their observations of some exchanges between Battles and Carbone which they believe were appropriate to a boyfriend-girlfriend relationship, rather than one of student and teacher. Cross-examination of Carbone and each of Petitioner's other witnesses established that various witnesses had given testimony which Battles contends is in conflict with testimony they had provided on previous occasions. Such alleged conflicting testimony is set forth in Paragraphs 7-19 of Battles' Proposed Recommended Order. Battles contends that allegedly conflicting testimony between witnesses, or in some cases between details testified to by the same witness at different times, effectively discredits the testimony and renders DOE unable to establish its case by clear and convincing evidence. The undersigned has painstakingly reviewed the testimony which Battles argues to be conflicting or impeaching, and deems the conflicts, to the extent any were actually established, to be irrelevant. To take one example, Carbone once testified that Borucki had walked her to Battles' office on the day of her first intimate encounter with Battles. On another occasion, she testified that Knight had walked her to the office that day. Whether she misspoke, or was mistaken, or whether someone else or nobody else had walked her to the office, is insignificant in the context of the entire record. The record as a whole reveals that Carbone was close to and had frequent contact with both Borucki and Knight, and spoke with as well as hung around with both of them often. The discrepancy in her testimony on this point may reflect a confused memory. Or it may have been a misspeak. Or she might have misunderstood the question. The factual resolution of this and other "discrepancies" raised by Battles does not affect the substantive factual issue in this case. In January 2000, Battles was tried, but not convicted, on criminal charges arising out of his alleged relationship with Carbone. Battles testified in the criminal case, and submitted a copy of his testimony as evidence in these proceedings. He was not obligated to testify in these proceedings, and elected not to. No inference for or against him was drawn by reason of this decision. In his criminal court testimony, Battles admitted that Borucki, whom he described as his "good friend" had made him aware that Carbone "liked" him. He claimed that he did not take this information seriously at the time, and promptly forgot about it, and denied the existence of any improper relationship with Carbone. In the course of his criminal trial testimony, Battles admitted that Carbone was accurate in her description of his underwear. He attributed her knowledge to the fact that he bends over a lot and anyone standing nearby would be able to see his underwear when he does. Battles' explanation for why Carbone can describe his underwear is rejected as not credible. A 33-year-old gym teacher would reasonably be expected to be able to conceal his underwear from his students. Given Battles' obvious, overwhelming motive to deny, as he did, the existence of any improper relationship with Carbone, the undersigned concludes that the transcript of Battles' trial testimony, when considered with the other evidence presented by Battles, is insufficient to refute the clear, consistent, and convincing testimony of Carbone as to the existence, nature, and duration of an improper sexual relationship between them. By letter dated May 18, 1998, Houlihan informed Battles that his teaching contract would not be renewed for the 1998-1999 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent Clifford L. Battles is guilty of the violations alleged in Counts 1, 3, 4, 5, and 6 of Amended Administrative Complaint; dismissing Count 2 of the Amended Administrative Complaint; and permanently revoking Battles' teaching certificate. DONE AND ENTERED this 19th day of October, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2001. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401 Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations of Emerald Coast Utility Authority’s Human Resources Manual as alleged in the agency action letter dated July 17, 2017.
Findings Of Fact At the outset of the hearing, Mr. Ward’s attorney announced that Mr. Ward no longer wished to challenge ECUA’s intent to terminate his employment. In other words, Mr. Ward withdrew his request for a hearing. Furthermore, Mr. Ward made a statement consistent with his attorney’s announcement. The undersigned finds that Mr. Ward’s decision to withdraw his hearing request was voluntarily made and uncoerced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of Emerald Coast Utilities Authority find that Mr. Ward violated Section B-13 A (4)(conduct unbecoming an ECUA employee), Section B-13 A (13)(falsification of records), Section B-13 A (18) (loafing), Section B-13 A (26)(substandard quality or quantity of work), and Section B-13 A (33)(violation of ECUA rules or guidelines or state or federal law) of the ECUA’s Human Resources Manual.3/ DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2017.
