Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 26, 2011.
Findings Of Fact Petitioner, Teresa Urbana, began employment with Sanmar Corporation (Sanmar) in August 2008 as a seasonal employee and worked there until November 2008. She was rehired in July 2009 in a Re-stocker position. She was promoted to Order Processor and was made a full-time regular employee later that year. Sanmar is a distributor of promotional apparel and accessories to companies that sell promotional apparel. The Jacksonville location is one of seven distribution centers (DC) throughout the country. The Jacksonville DC fulfills customer orders by receiving, picking, checking, packing and shipping them. Respondent is an employer as contemplated by chapter 760, Florida Statutes. An Order Processor is responsible for picking and checking the order, and then packing the order for distribution to Sanmar's customers. The position description for Order Processor includes the following: PHYSICAL DEMANDS: While performing the duties of this job, the employee is constantly required to walk and stand. The employee is frequently required to reach with hands and arms, handle or feel product, to pull/push cart with product, grasp and perform repetitive hand, wrist and arm motions. The employee is frequently required to climb, kneel/squat, bend and carry. The employee occasionally lifts and/or moves up to 40 pounds, and seldom lifts and/or moves up to 50 pounds. Specific vision abilities required by this job include close vision, color vision, peripheral vision, depth perception and ability to adjust focus. WORK ENVIRONMENT: Work environment is moderately noisy. The employee is occasionally required to work near conveyor systems. There is exposure to dust and changes in weather conditions. Employee must be able to handle stress that is involved in meeting strenuous customer deadlines, working in high volume areas, and be flexible and able to interact with employees at all times. Paul Rhodes is the Distribution Manager and Alice Torres is Human Resources Manager for Sanmar's Jacksonville DC. Ms. Torres reports to Olivia Thurmond, Senior Manager of Human Resources. Ms. Thurmond is in the corporate headquarters for Sanmar, which is located in Issaquah, Washington. Sanmar's Employee Handbook includes an Equal Employment Opportunity Policy, an Anti-Harassment and Non-Discrimination Policy, and a Reasonable Accommodation Policy. Petitioner received a copy of the Employee Handbook. Allegations Related to Disability On April 21, 2011, Petitioner approached Ms. Torres to inform her of pain Petitioner was having in her wrists and hands. Petitioner informed Ms. Torres that she believed that this condition was work-related. With the help of Ms. Torres' assistant, Yadira Batlle, Petitioner completed an Accident/Incident Report. Ms. Batlle actually completed the form based on information provided by Petitioner, because Petitioner is not fluent in English, as her primary language is Spanish. The Accident/Incident Report was signed by Petitioner and references carpel-tunnel in both hands as the description of the injury. On that same day, Sanmar provided Petitioner with contact information for Solantic Baptist Occupational Health (Solantic) so she could receive evaluation and treatment for her injury which Petitioner claimed was work related. While there was some dispute as to whether Petitioner's condition was work related and covered by workers' compensation, it is undisputed that Sanmar reported the injury to its workers' compensation carrier and Petitioner did receive benefits and medical treatment through workers' compensation. On April 22, 2011, Petitioner was evaluated at Solantic. As a result of her evaluation, Petitioner was released to return to work with a work restriction of wearing wrist braces. Petitioner continued to perform her Order Processor job duties wearing wrist braces. Petitioner also was evaluated by her personal physician, Dr. Esquivia-Munoz, who provided a note dated June 1, 2011, which stated as follows: This patient has bilateral moderate carpal tunnell [sic] syndrome worse at right wrist, which is interfering with her regular duties and regular activities for which she will need surgical decompression in the future. When Ms. Torres received this doctor's note, she explained to Petitioner that the note did not include any specifics as to any work restrictions. As a result, Ms. Torres advised Petitioner she could not allow her to return to work until the company received work restrictions from her doctor. Therefore, Sanmar placed Petitioner on a leave of absence under the Family and Medical Leave Act (FMLA). On June 2, 2012, Ms. Torres sent a fax to Dr. Esquivia-Munoz with a request that he complete an attached certification of Petitioner's health condition. He completed the form, but the information he provided essentially repeated what he wrote on the June 2, 2011, note, and did not provide specific working restrictions which Sanmar requested and needed to be able to provide appropriate and safe working restrictions for Petitioner. Ms. Torres forwarded these documents to Christy Hammond, Sanmar's Leave Supervisor, who is located in the Washington office. On June 3, 2012, Lori Shutter, Sanmar's Benefits Manager, faxed a request to Dr. Esquivia-Munoz, requesting that he complete an enclosed "release to return to work" form identifying work restrictions. She also attached a position description for the Order Processor position. Sanmar did not receive a completed form or further specific work restrictions from Dr. Esquivia-Munoz despite this request. Petitioner went back to Concentra, the workers' compensation medical provider, for further evaluation. Concentra identified her activity status as "modified activity" and identified her work restrictions as no pushing, pulling or lifting over zero pounds, and referred her to a hand surgeon. The facsimile shows that this information was faxed to Sanmar on June 13, 2011. Ms. Torres forwarded this information to Ms. Hammond in the corporate office, and discussed it with Mr. Rhodes. The Order Processor position involved frequent reaching, pushing, grasping, and performing repetitive hand motions. Pushing, pulling, and lifting are essential functions of the Order Processor job. Accordingly, the work restrictions received from Concentra prevented Petitioner from performing essential functions of the job of Order Processor, with or without reasonable accommodations. Sanmar found light-duty work that Petitioner could do within the work restrictions as set forth by Concentra. She was assigned to do "go-backs," which is part of the order processing job, but not the entire job. Go-backs are items, such as hats or t-shirts, found in the wrong bins. The go-back work required Petitioner to use a computer to find the product's correct location, write down that location, and carry the product to the correct location. There is no regular go-back position at Sanmar. This was a temporary assignment created to accommodate Petitioner by eliminating many of the regular functions of the Order Processor position, including pushing, pulling, picking, and packing items to fill customer orders. On June 13, 2011, Ms. Torres called Petitioner to advise her that Sanmar had light-duty work within Petitioner's work restrictions. Petitioner returned to work on June 15, 2011, performing go-backs at her regular rate of pay, i.e., as when she could perform all functions of the Order Processor position. On June 17, 2011, Petitioner submitted a Leave of Absence Request Form, requesting to commence leave on June 20, 2011. Ms. Torres then provided a Notice of Eligibility and Rights and Responsibilities for leave under FMLA to her. This document notified Petitioner that she was eligible to receive FMLA leave, and further notified her that she needed to provide sufficient certification to support her request for FMLA leave by July 1, 2011. On June 20, 2011, Petitioner clocked in at work at approximately 12:24 p.m., after an appointment with Petitioner's hand specialist, Dr. Greider. Petitioner immediately went to the Human Resources office and provided a note from Dr. Greider which confirmed that she had an appointment with him that morning, and left his office at 11:30. Petitioner also provided a doctor's note from Dr. Greider detailing Petitioner's work restrictions. She gave the note to Ms. Batlle, because Ms. Torres was out of the office at that time. The note reads as follows: LIGHT DUTY WORK RESTRICTIONS No repetitive gripping and pinching. No repetitive pulling and pushing. No lifting greater than 5 pounds. No production keying (until further notice) Frequent rest breaks- 5 minutes per hour. Effective until pending surgery. Ms. Batlle left copies of these doctor's notes for Ms. Torres, along with a handwritten note stating that Petitioner was going home for the day. Ms. Thurmond happened to be visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes, along with Ms. Hammond by telephone, discussed Petitioner's new work restrictions and concluded that, because processing go- backs required keyboarding, gripping and pinching, Petitioner could no longer perform that light-duty work.2/ Accordingly, Sanmar approved Petitioner's request for FMLA leave. Beginning June 21, 2011, Petitioner began taking the FMLA leave she had requested. During this leave, Petitioner had surgery on her right hand on July 21, 2011. Petitioner remained on FMLA leave until September 13, 2011, at which point she had exhausted her FMLA leave entitlement and had still not been released to work. Rather than terminating Petitioner's employment at that time, Sanmar provided additional leave until the company was able to determine whether Petitioner would be able to return to work. Sanmar provided Petitioner an FMLA Designation Notice which informed her that her absence from September 14 through September 25 would be provided to her "as a reasonable accommodation under the Americans with Disability Act (ADA)." On September 16, 2011, Ms. Hammond prepared a letter to Dr. Greider outlining the modified work description in doing go-backs, and asking him to advise whether or not she would be able to perform those duties. Dr. Greider faxed a reply to Ms. Hammond on September 20, 2011, advising that the activities described in Ms. Hammond's letter would be acceptable. Ms. Torres and Ms. Hammond prepared a letter to Petitioner dated September 22, 2011, advising her that Sanmar had received a written confirmation from Dr. Greider that she had been approved to return to work with the modified duties (performing go-backs). The letter further notified Petitioner that she was expected to return to work on September 26, 2011, which she did. Ms. Torres did not receive any complaints from Petitioner during the September to November timeframe regarding her ability to perform the go-backs duty. On November 2, 2011, Petitioner provided Ms. Torres with a note from Dr. Grieder confirming Petitioner would be out of work for surgery on her left hand from November 7 through 10, 2011. The note states the following: Patient is scheduled for hand surgery on 11/7/11 and may remain out of work from date of surgery until 11/10/11 at which point patient may return to work with no use of the left hand until follow up appointment on 11/21/11. Ms. Torres and Petitioner had a discussion regarding Dr. Greider's note during which Petitioner expressed doubt that she would be able to return to work November 10 as she still had restrictions on the use of her right hand and did not know what kind of work she would be able to perform after surgery on her left hand. Ms. Torres than contacted Ms. Hammond via e-mail requesting her assistance in confirming the work restrictions, if any, on Petitioner's use of her right hand. On November 8, 2011, Ms. Hammond, through the company's workers' compensation carrier, received confirmation from Dr. Greider's office that she was released from work restrictions with regard to her right hand as of October 17, 2011.3/ On November 9 and 10, Petitioner left voice mail messages for Ms. Torres and her assistant regarding her inability to work. On November 11, 2011, Petitioner did not report to work. Because this was the date that had been indicated by Dr. Greider as the date she was released to return to work (regarding her right hand), and after receiving guidance from Ms. Hammond and input from the workers' compensation carrier, Ms. Torres called Petitioner and informed her that Sanmar had not received any additional information from Dr. Grieder and advised Petitioner that it was Petitioner's responsibility to obtain a new note from her doctor if she could not work. Ms. Torres reminded Petitioner that she needed to come in to discuss her restrictions and possible light-duty work. Ms. Torres received another call from Petitioner on November 14, 2011. Ms. Torres reiterated to Petitioner that she needed to report to work with her restrictions so Sanmar could attempt to accommodate her appropriately. Petitioner reported to work later that same day. She met with Mr. Rhodes and Ms. Torres to discuss her ability to work and what accommodations would be necessary. Mr. Rhodes first advised Petitioner that she would be doing go-backs which could be performed without the use of her left hand. When Petitioner expressed concern about her ability to perform that task, Mr. Rhodes agreed to assign her a temporary light-duty position auditing the restock until they could review the matter further. Petitioner agreed to perform the restock work. Also on November 14, 2011, Ms. Torres received a fax from Dr. Grieder's office which attached the same November 2, 2011, note regarding Petitioner's restrictions. Nothing in the November 14, 2011, fax from Dr. Grieder's office changed Petitioner's work restrictions. Auditing the restock is not a regular position at Sanmar, but is one part of the many duties of the inventory department. In offering this temporary work to Petitioner, Sanmar eliminated many of the essential functions of the Order Processor job. Petitioner left the November 14 meeting with Ms. Torres and Mr. Rhodes and worked for about two hours. After about two hours, Petitioner apparently fainted and left work in an ambulance which transported her to the hospital. That was the last day Petitioner worked for Sanmar. Petitioner received notes from Dr. Greider dated November 21, 2011, and December 9, 2011, listing the same light duty restrictions (i.e., no repetitive gripping and pinching, no repetitive pulling and pushing, no lifting greater than five pounds, no production keying, and frequent rest breaks), valid for the left hand only. Petitioner also received a note from Dr. Greider dated January 23, 2012, indicating that she may continue previous restrictions until February 6, 2012, at which time the patient may return to work full duty. However, Ms. Hammond, Ms. Thurmond, and Ms. Torres, all testified that they did not receive this note. Petitioner was seen by an orthopedic doctor in August 2012. The doctor's note indicates that she has a permanent work restriction which precludes her from lifting more than 10 to 15 pounds. Facts regarding disciplinary action Through an employee loan program, Sanmar approves loans to employees under certain circumstances. In late December 2010, an incident arose involving Petitioner and her request for an employee loan. On December 28, 2010, Ms. Torres heard Petitioner speaking in a loud voice outside of Ms. Torres' office. She heard Petitioner accusing her assistant at that time, Sandra Colindres, of refusing to help her with papers required for such a loan. Petitioner spoke in a tone of voice that Ms. Torres felt was not appropriate for the office. She then asked Petitioner to meet with her in her office. While in Ms. Torres' office, Petitioner complained that Ms. Colindres was unwilling to help her with the loan paperwork. Petitioner had not been scheduled to work that day. Ms. Torres informed Petitioner that the loan process had very recently been changed, and that the loan would need to be approved by Human Resources if it were determined that there was a critical need. Ms. Torres considered Petitioner's tone of voice during this conversation in her office to be disrespectful, demanding and rude. At the end of this meeting, Ms. Torres told Ms. Colindres to give Petitioner the employee loan form. When Petitioner left Ms. Torres' office, Petitioner approached a co- worker who was also in the office and began talking in a loud voice about what had just happened. Ms. Torres overheard Petitioner talking about their meeting to another employee and asked Petitioner to discuss the issue in her office. Ms. Torres told Petitioner that her conduct was disruptive, unprofessional, and unacceptable. She told Petitioner that she had caused a disturbance in the workplace, that Ms. Torres would be informing the DC manager about this incident, and that Petitioner would likely be receiving corrective action.4/ Shortly thereafter, Ms. Torres accompanied a pest control representative to the break room. When they arrived in the break room, Ms. Torres observed Petitioner telling a group of employees her version of the events in her office. The employees dispersed when they saw Ms. Torres enter the break room. When Ms. Torres turned to leave the break room, she saw Petitioner complaining to yet another group of employees about the incident. Ms. Torres considered this behavior to be extremely disruptive. Ms. Torres then asked a supervisor, Tasha Porter, to instruct Petitioner to leave the premises. Ms. Torres was relatively new to the company, and she consulted with Paul Rhodes and Olivia Thurmond to determine appropriate disciplinary action that would be consistent with the company's response to similar instances of conduct. Mr. Rhodes was out of the office from December 27, 2010, through January 2, 2011. On January 3, 2011, Mr. Rhodes and Petitioner met to discuss the December 28, 2010, incident. Tasha Porter also attended the meeting and supervisor Daniel Serrano attended the meeting as an interpreter. Mr. Rhodes also spoke to and received written statements from Alice Torres, Sandra Colindres and Tasha Porter regarding the incident. After reviewing the matter, a decision was made to give Petitioner a final Written Warning for unprofessional conduct and disruptive behavior which had taken place on December 28, 2010. Petitioner refused to sign the final Written Warning, did not acknowledge that she committed the actions described, but acknowledged that the conduct described would be unacceptable and that a person engaging in such conduct could be terminated. The final Written Warning was given to Petitioner on January 10, 2011, by Mr. Serrano, who also speaks Spanish. Prior to receiving this final Written Warning, Petitioner had not reported a disability to anyone at Sanmar. There is nothing in the record to establish or suggest that any one at Sanmar knew, perceived or regarded Petitioner as having a disability at that time. On the evening of April 18, 2011, Group Lead Terri Andrews was supervising the employees on the lo-bay floor. Employees were working overtime to get all customer orders shipped by the end of the day. Ms. Andrews was at the print station, as Petitioner approached her. Ms. Andrews directed Petitioner to report to the pack line. Petitioner told Ms. Andrews that she wanted to go home. Ms. Andrews told Petitioner again to report to the pack line and Petitioner left the floor. Ms. Andrews described Petitioner as appearing agitated. Petitioner arrived at the pack line where Becquer Rosado, another Group Lead, was directing employees where they were needed the most. Mr. Becquer saw Petitioner approaching and before he could direct her to a position, she put her hand up in the air, walked past him, and told him that she would only take instructions from Patricia Alonso and not from him. This was done in front of other employees. Patricia Alonso was a Department Lead for the pack line. A Group Lead is superior to a Department Lead because Group Leads oversee several functions, while Department Leads only supervise a single function. Employees are expected to follow the directions of both Group and Department Leads. Mr. Rosado reported this incident to his supervisor, Lori Pritchard, and completed an Employee Concern form the following day. Ms. Andrews also reported Petitioner's behavior to Ms. Pritchard, and completed an Employee Concern form on April 21, 2011. It was that day that Petitioner approached Ms. Torres to talk about pain that Petitioner was having in her wrists and hands as more fully discussed in paragraph 6 above. Petitioner was not at work from April 21 until April 26, 2011. After reviewing the Employee Concern forms, Ms. Torres met with Petitioner regarding the April 18, 2011, incident. During this meeting, Petitioner denied being disrespectful to Ms. Andrews and Mr. Rosado. After speaking to Petitioner on April 26, 2011, Ms. Torres recommended that Petitioner be terminated for her actions of April 18, 2011, because Petitioner had just received a final Written Warning for her behavior on January 10, 2011. However, Mr. Rhodes decided to give Petitioner another chance and, instead of terminating Petitioner, decided that Sanmar would issue a Final Warning Follow Up Discussion Memo to Petitioner, which was done on May 5, 2011. This Discussion Memo reiterated that any future violation of company policy by Petitioner would result in further corrective action up to and including termination of employment. During May and June 2011, and pursuant to Sanmar's Voluntary Time Out (VTO) procedure, Petitioner volunteered on several occasions to go home when production was slow and Sanmar asked for volunteers. Employees interested in VTO simply had to write their names on the "Go Home Early Sheet." Sanmar then selected employees for VTO in the order in which the employees volunteered to go home early. Petitioner's name appears on the VTO sheets in evidence, and her name is near the top of the list on most days. She was not sent home early on days that she had not signed up for VTO on the Go Home Early sheet. On June 20, 2011, after leaving the doctor's notes referenced in paragraph 18 through 20 with Ms. Battle, Petitioner proceeded to the break room where Tasha Porter, a supervisor, found her engaged in a conversation with co-workers while on the clock and not on a break. When Ms. Porter asked Petitioner why she was in the break room while clocked in, Petitioner replied that she taking her break. Ms. Porter reported this to Ms. Torres. Afterwards, Petitioner returned to work processing go-backs, although another employee was doing the keyboarding, as further explained above. As discussed in paragraph 21 above, Ms. Thurmond was visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes discussed the incident in the break room and decided to issue a final Written Warning to Petitioner for falsification of time records for this incident of being "on the clock" while in the break room. This was the same meeting in which they discussed Petitioner's June 20, 2011, work restrictions. Ms. Torres and Ms. Thurmond issued a final Written Warning to Petitioner at the same meeting in which they notified her that Sanmar had approved Petitioner's request for FMLA leave. The weight of the evidence shows that this took place on June 21, 2011. On or around November 3, 2011, prior to Petitioner going on leave for her second hand surgery, Ms. Torres learned of an incident involving Petitioner and her son, Manuel Sanchez, who also worked for Sanmar. Specifically, Ms. Torres learned that Mr. Sanchez may have forged Petitioner's signature on a time-off request which asked for permission to be off work on October 28, 2011. After discussing this with Mr. Sanchez, Ms. Torres concluded that he had forged his mother's name on the time-off request at her request. Sanmar considered this to be falsification of company records. This is an offense for which Sanmar has disciplined employees in the past.5/ On Friday November 4, 2011, which was Petitioner's last day at work before taking leave for her second hand surgery, Ms. Torres discussed the forged time off request with Petitioner. Petitioner admitted that she had asked her son to fill out the request and sign her name. At the end of their conversation, Ms. Torres told Petitioner not to discuss their meeting or the situation with anyone, not even Petitioner's son, because the company was continuing to investigate the matter. Despite this instruction, Lori Pritchard, a supervisor, reported to Ms. Torres that Petitioner went directly to her son and had a heated discussion with him at the print station. Although Ms. Pritchard was unable to fully understand their conversation because it was in Spanish, Ms. Pritchard advised Ms. Torres that she believed they were discussing Ms. Torres' meeting with Petitioner. Following this incident, Ms. Torres met again with Mr. Sanchez and Mr. Sanchez admitted he and Petitioner were discussing the forged time off request at the print station on November 4. Ms. Torres, however, was unable to speak to Petitioner about this incident until November 14, 2011, when Petitioner returned to work after her November 7 (second) surgery. During the meeting with Petitioner upon her return to work on November 14, 2011, (see paragraph 30), Mr. Torres and Mr. Rhodes told Petitioner the company was still reviewing the incident regarding the forged time-off request. They advised Petitioner that they had confirmation she and Mr. Sanchez discussed the forged time off request at the print station. While Petitioner denied this, she admitted she talked about the incident with her son at home, where Mr. Sanchez also resided. Ms. Torres and Mr. Rhodes believed Petitioner should be terminated for the November 4 incident, because it involved an incident of insubordination, following the previous warnings of unprofessional conduct issued In January and May 2011. However, they wanted to discuss their recommendation with Ms. Thurmond and Marty Rask, Operations Manager, in keeping with the company's normal practice. Although they planned to talk to Ms. Thurmond and Mr. Rask and, with their concurrence, terminate Petitioner later during the day on November 14, they were not able to do so because of Petitioner unexpectedly became ill on that day. This began a lengthy leave of absence from which she never returned. Mr. Rhodes and Ms. Torres recommended that Sanmar terminate Petitioner for her insubordination on November 4, when she discussed the document falsification issue with her son in violation of Ms. Torres' instructions, as well as her dishonest and evasive response on November 14, when Mr. Rhodes and Ms. Torres spoke to her about the incident. The final decision to terminate Petitioner was made on November 30, 2011. However, Sanmar did not communicate the termination decision to Petitioner until January 24, 2012. This delay resulted from circumstances related to Petitioner's medical leave and on-going workers' compensation proceedings.6/ Sanmar decided to move forward with its November 30, 2011, termination decision. Sanmar's usual practice of communicating employee termination is to inform the employee in person. However, Christy Hammond had been communicating with Petitioner and respected Petitioner's request that she not be required to come to the workplace only to be fired. Therefore, Sanmar decided to issue the termination letter via mail. Accordingly, on January 24, 2012, Sanmar sent Petitioner a termination letter signed by Olivia Thurmond. Enclosed with the letter was a documentation form explaining the reasons for Petitioner's termination, i.e., Petitioner's insubordination on November 4 and her dishonest and evasive behavior on November 14, combined with her prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Teresa Urbina. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 30th day of November, 2012.
The Issue The issues to be resolved in this proceeding concerns whether the Petitioner should be deemed to have abandoned his career service employment position with the Department of Natural Resources and, therefore, whether the Department of Administration should issue a final order to that effect. The parties presented Proposed Findings of Fact and Conclusions of Law which are dealt with in this Recommended Order and, additionally, are addressed in the Appendix attached hereto and incorporated by reference herein.
Findings Of Fact For approximately two years and ten months the Petitioner, Jack W. Simmons was employed by the Department of Natural Resources at the Maclay Gardens State Park in Tallahassee, Florida. On January 7, 8, 9, 10 and 11, 1985, Simmons was scheduled to work at his position at Maclay Gardens. Simmons did not appear for work on those days and did not seek prior authorization to be absent from work on those days. Simmons did not notify the Department of Natural Resources of his absence or the reasons there for on those days. Jack Simmons had been absent in the past for various reasons including a severe back problem associated with severe back pain. Simmons was largely immobilized during the week of January 7, 1985 and was unable to report to work because of severe back pain. He was unable to stand erect and unable to walk without great difficulty. As established by Joyce Jones, his neighbor, he was able to very slowly and painfully go to the door to let her in his apartment while dressed in a housecoat. He lived on the second floor in an apartment at the top of approximately twenty stairs. He was unable to cook for himself or to dress himself to the extent that he could not put on shoes and rested primarily in a reclining chair. Mr. Simmons at the time in question did not have a telephone and testified that he felt the nearest telephone was approximately three quarters of a mile away. He did not inquire of any of his neighbors as to whether they had a telephone and could report the reason for his absence to his employer, however. His neighbor, Joyce Jones, who assisted in feeding him and caring for him during this week when he was suffering severe back pain, established that she had asked him on January 9th whether he wished her to call his employer to report his absence. He declined her offer, intimating that he would call his employer later himself. Neither Simmons nor anyone else ever called his employer to report his absence or the reasons for his absence. There is no doubt that Mr. Simmons was severely incapacitated on the day in question and required the assistance of Ms. Jones to clean his house, do his laundry, cook for him and purchase medicine for his Lack pain. On one occasion she observed him crawling on the floor in an effort to get back in his reclining chair and on another occasion she observed his inability to get out of the bathtub. There is no dispute concerning the immobilizing nature of Mr. Simmons' illness. Mr. Simmons did not have a telephone and, although his employer previously suggested that he get a telephone, his employer did not require that he do so, merely requiring that he inform them of any absences and the reason therefor. Mr. Simmons maintained that on January 9th, the third day of Mr. Simmons' unreported absence, he was on his way to a telephone to call his employer and report his absence and its reasons when Major Johnston, his employer and supervisor, stopped outside his home and verbally informed him he was fired. That testimony is belied by that of Major Johnston, however, who established that he went to Simmons' house January 11th, a Friday, and not January 9th, a Wednesday. Major Johnston's testimony is accepted over that of Mr. Simmons and Joyce Jones, neither of whom could remember with certainty whether it was January 9th or not when this episode purportedly occurred and because, throughout his testimony, Mr. Simmons candidly admitted he was not able to recall dates and times very well. Major Johnston's version of his whereabouts on January 9th was corroborated by his co-workers, who, together with Johnston, established that Johnston was at a meeting all day with his employers and supervisors on January 9th and only left that meeting during that entire work day to attend a lunch gathering with the same personnel. They immediately returned together from the restaurant to the remainder of the meeting. Indeed, Major Johnston established that he was at a park district manager's meeting all day on both January 9th and 10th, except for the lunch breaks when he lunched in the company of other co-workers who were also in attendance at the meeting, some of whom testified in corroboration of his testimony. Accordingly, Major Johnston's version of the events in question on January 9th and 11th, is accepted over that of Mr. Simmons and Ms. Jones. Major Johnston had intended to go on annual leave from his position on January 11th, but because he was directed by his superior to visit Simmons for the purpose of terminating him from employment, he worked that morning and only took annual leave on that afternoon. His testimony as to his whereabouts on January 9th was corroborated by C. W. Hartsfield, Chief of the Bureau of Park Management, by Joseph Knoll, Assistant Chief, and by James A. Cook, a former deputy director of park operations, all of whom were in Johnston's presence all that day. Joseph Knoll discussed Simmons' unauthorized absence situation with Major Johnston on January 9th and 10th and on January 10th instructed Major Johnston to wait until the next day, Friday, January 11th, and on that day go to Simmons' home to make sure he was not hospitalized before the Department of Natural Resources took any action against Mr. Simmons' employment status. Late on the morning of January 11th, Major Johnston reported to Joseph Knoll that he had visited Mr. Simmons that morning and had notified him of his termination from employment that morning, January 11th. Mr. Simmons was then removed from the payroll and other benefit entitlements effective at 5:00 P.M., January 9th, the third day of the unauthorized absence in question. In the face of the testimony of Major Johnston concerning the termination on January 11th, Mr. Simmons opined only that "I believe it was January the 9th", or words to that effect. His neighbor who cared for him during his illness, Joyce Jones, simply could not remember on what date Simmons told her he had been terminated. Major Johnston had earlier signed and delivered to Simmons a letter warning him that if he had one more unauthorized absence it could result in the loss of his job. During 1984 Mr. Simmons had received a written reprimand for unauthorized absence and tardiness and for similar infractions later in that year had received a three-day suspension from employment. It was at this point that Major Johnston signed and gave him the letter warning him that any more unauthorized absences could result in the loss of his employment. Simmons maintained that he was totally bedridden, without telephone and that he lived at the corner of Park and Franklin Streets in Tallahassee, approximately three-quarters of a mile from the nearest telephone. His own witness, however, his neighbor, Joyce Jones, established that she visited him and he was able to painfully and laboriously come to the door and let her in and tell her of his back problems. On those and succeeding days she cared for and cooked, fetched him medicine and the like and Simmons never asked her to call his employer on his behalf although she offered to call. Simmons had other neighbors, but never asked any of them to call for him to report his absence, either. Although Mr. Simmons was undisputedly gravely ill and unable to walk any distance to use a telephone, there is no doubt that he had an opportunity to report his absence and its reasons to his employer through neighbors, one of whom had even offered to do so, but he had declined that opportunity after being previously warned on two occasions about the importance of reporting his absence to his employer. The Petitioner was given written notice of Respondent's initial determination that he had abandoned his position for in excess of three days and notice of his right to a hearing to contest that determination, as shown by Respondent's Exhibit One, in evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final Order be entered by the Department of Administration finding that Jack W. Simmons abandoned his position of employment for three consecutive unauthorized days of absence, from January 7th through January 9, 1985, as envisioned by Rule 22A-7.10(2), Florida Administrative Code. DONE and ORDERED this 27th day of December, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 323C1 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1985. COPIES FURNISHED: Steven A. Been, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulvard Tallahassee, Florida 32303 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paolo G. Annino, Esq. Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 Kevin Crowley, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32302 APPENDIX - CASE NO. 85-0740 Rulings on Petitioner's Proposed Findings or Fact: The Petitioner's Proposed Findings of Fact are in unnumbered paragraphs and We ruled upon by paragraphs in the sequence they appear in the Petitioner's Proposed Findings of Fact and Conclusions of Law. In large part the Proposed Findings of Fact consist of discussion of testimony and argument of counsel, but to the extent they assert Proposed Findings of Fact they are ruled upon as follows: Accepted.| Accepted in part but rejected inasmuch as this paragraph depicts that the nearest telephone was three-quarters of a mile away, which Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that it depicts Simmons intent to contact his employer, but rejected insofar as it has already been found that Simmons failed to actually contact his employer. Accepted, but this paragraph of Proposed Findings is subordinate to and unnecessary to the Findings of Fact reached in the Recommended Order on the malarial issues presented and is not dispositive of the material issues of fact raised in this case. Accepted in that there is no dispute as to the severity of Jack Simmons' illness, but this Proposed Finding of Fact concerning the severe nature and immobilizing nature of his illness is subordinate to, and unnecessary to the Findings of Fact reached in the Recommended Order concerning Simmons' failure to take advantage of opportunities to notify his employer of the reasons for his absence and is therefore not dispositive of the material issues of fact presented in this proceeding. This Finding is rejected to the extent that it asserts that Simmons had no opportunity to contact his employer which Proposed Finding does not comport with the competent, substantial, credible evidence of record, although it is true that it is undisputed that Simmons lacked a telephone and his neighbor, Joyce Jones, lacked a telephone. This Proposed Finding of Fact is rejected a., not in accordance with the competent, substantial, credible evidence of record in that it has been found that Simmons did not attempt to contact his employer, although it is true that his neighbor, Joyce Jones, offered to call his employer and at that time. Simmons rejected the offer stating that he intended to call the employer himself. He simply never did so when he had the opportunity. This Proposed Finding is accepted as in accordance with the competent, substantial credible evidence of record, but is subordinate to and immaterial to the Findings of Fact made disposing the material issues presented. The Department of Natural Resources did indeed not require him to obtain a telephone, but its procedure for reporting lateness or absence did envision the use of a telephone and his superiors were aware that he did not have a telephone, however, this Proposed Finding is subordinate to the Finding made to the effect that although Simmons had no telephone he did not avail himself of ample opportunity to use a neighbor's phone in his own apartment building or have Ms. Jones phone his employer for him, which she had offered to do and which he refused. This Finding is rejected as not in accordance with the competent, substantial, credible evidence of record in that the testimony and evidence of record in the above Findings of Fact made in the Recommended Order show that Simmons had the ability to contact his employer and failed to avail himself of it. This Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. This Proposed Finding of Fact is rejected as not in accordance with the competent, substantial, credible evidence of record to the extent that it indicates that Simmons was fired on January 9th instead of January 11th.I Accepted. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. This Finding is accepted to the extent that it depicts that Simmons was removed from all employee benefits including payroll effective 5:00 P.M. January 9, 1985, however that is subordinate to and not dispositive of the issue resolved in the Finding of Fact in the Recommended Order which establishes that based upon the competent, substantial, credible testimony and evidence of record, Simmons was indeed terminated by his employer on January 11, 1985, not January 9th. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that the Notice of Termination indicated that Simmons was on unauthorized leave from January 2nd through January 6, 1985. The Respondent has admitted that is an error, but is an immaterial error since the actual disputed dates in question begin Monday, January 7, 1985. The mere fact that the termination notice contained more depicted dates of unexcused absences than were admittedly the case is an immaterial error and this last Proposed Finding of Fact is subordinate to and immaterial to disposition of the material issues of fact presented. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. (It should be noted that the Respondent has not numbered all of its Proposed Findings of Fact paragraphs. The Hearing Officer in making 8 specific Rulings on Proposed Findings of Fact of Respondent has numbered those paragraphs 1 through 8 in making these specific Rulings).
Findings Of Fact Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether or not the School Board of Madison County, Florida may terminate Respondent as one convicted of a crime of mortal turpitude in 1988 or 1989:, pursuant to Section 231.36(4)(c) F.S. [The Petition for Discharge also alleges that a "pattern" of issuing worthless checks over a period of years has been engaged in by Respondent but the "prayer" or charging portion of the Petition is silent as to whether the Petitioner intends this allegation to constitute a specific, separate charge.] Whether or not the School Board of Madison County, Florida may, pursuant to Section 231.44 F.S., terminate Respondent for absence without leave during the period he was incarcerated for passing worthless bank checks.
Findings Of Fact Petitioner, Gene Stokes, is the duly elected Superintendent of Schools of Madison County, Florida. Respondent, Doctor Randall Choice, III, is a member of the instructional staff of the district School Board of Madison County, Florida, employed by the Board under a continuing contract entered into on May 7, 1981. The Respondent was charged in an information filed by the State Attorney of the Third Judicial Circuit on June 27, 1988 with passing a worthless check, the payee being the Madison Inn, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $106.00. There were not sufficient funds in the account to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The Respondent was charged in an information filed by the state attorney of the Third Judicial Circuit on September 12, 1988 with passing a worthless check, the payee being Perry Coca Cola, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $61.60. There were not sufficient funds in the account of the Respondent to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The check given to the Madison Inn was for lodging and the check to Perry Coca Cola was for products which the Respondent had received. Neither transaction had anything to do with Respondent's professional activities as a school teacher. The Respondent appeared before the Honorable Wetzel Blair, County Judge of Madison County, Florida, on November 2, 1988 and entered a plea of "guilty" to the two informations noted above. The court at that time gave the Respondent the opportunity to make restitution on the two checks and to pay court costs of $46.00 within 30 days. If the Respondent made the restitution and paid the court costs within the prescribed time, the court agreed to withhold adjudication. The Respondent executed the offer of a plea of "guilty", but nonetheless, the court set the matter for trial on December 2, 1988 upon a plea of "not guilty." This "Order Setting Trial" was signed by the judge on November 2, 1988, and stated: Order setting trial date upon the above and foregoing plea of not guilty, trial of this case is set for non-jury trial, on `Friday, December 2, 1988 at 9:00 a.m. [Tr-51-72]. The Respondent did not pay the restitution or court costs within the 30-day period as directed by the Court, and, accordingly, the Respondent was ordered to appear before the Court on January 4, 1989. At that time, the court entered another order reciting that the Respondent had entered a plea of "guilty" on November 2, 1988 and had been directed to pay restitution for the checks in the cases within 30 days. The latter order further recited the fact that the Respondent had paid the restitution, but not within the stipulated time, and that Respondent was therefore sentenced to 30 days in the Madison County Jail. Upon the testimony of Madison County Judge Wetzel Blair, it is found that as of the date of formal administrative hearing, September 20, 1989, Respondent had not been adjudicated guilty of the crime of passing a worthless bank check, even though he was incarcerated in the Madison County Jail from January 4, 1989 until about 4:00 p.m. on January 23, 1989. (TR- 78) On January 4, 1989, the Respondent teacher immediately notified his principal, Mrs. Colleen Campbell, by telephone that he was in jail and that he needed to be granted leave for the period he would be incarcerated, predicted at 30 days. She informed Respondent that he had six days of accrued leave due him and agreed to sign she form requesting/approving that period of leave. She also informed Superintendent Stokes that Respondent was in jail, but she provided no written request for leave for Respondent beyond tee six days to which he was entitled. The superintendent did not know of Respondent's oral request for additional leave until Respondent was released from jail. The principal and superintendent have the authority to approve personal leave up to a teacher's accrued limit, but if insufficient personal leave time has been accumulated, the school board must approve the overage. It is unclear from the record whether preprinted forms are provided for this purpose, but apparently such requests must be made in writing. It is also unclear whether such requests are always submitted directly to the school board or if principals and the superintendent act as conduits for such requests to the school board. However, such written leave requests are usually taken up at each monthly school board meeting, which is often "after the fact" of the requesting teacher's physical absence. Sometimes, the applicant appears at the school board meeting in person. Respondent was released from jail or January 23, 1989 at 4:00 p.m.. On January 24, 1989, the Respondent reported personally to the superintendent, reported his release from jail, and sought to determine his leave status, At that time, the superintendent informed the Respondent that the superintendent was suspending the Respondent with pay until the next school board meeting. Also, the superintendent then informed the Respondent that the superintendent was reporting Respondent's conduct to the Education Practices Commission. The superintendent did then specifically inform the Respondent that he had been absent without leave, as it was presumed the Respondent had been incarcerated for passing worthless bank checks, and that was the thrust of their conversation. At all times during his incarceration of 19 days, the Respondent believed that he had taken the necessary steps to obtain authorized leave, and he assumed, without any affirmative action by the principal, superintendent, or school board that he had been approved for leave with pay up to his accrued six days and for leave without pay for the remainder of the incarceration period. Respondent was incarcerated January 5-23, 1989, inclusive. Resort to a calendar reveals that only 12 of Respondent's 19-day incarceration were week days or work days (One was Martin Luther King's Birthday Holiday.) Respondent was, in fact, approved for his six accrued leave days. Therefore, the balance that Respondent was actually absent without leave amounted to only six days. Neither Superintendent Stokes nor the school board, as a collegiate body, approved Respondent's oral request for leave without pay during the six days in question. Indeed, the school board did not convene until February, when, at the superintendent's request, it altered his suspension of Respondent with pay to a suspension without play. Respondent did not file any after-the-fact written request for leave without pay and present it to the school board when it met in February 1989 to consider the suspension request, although it may be inferred that the school board's suspension of Respondent had the retroactive effect of denying his oral leave request. The citizens of Madison County believe that the passing of a worthless check is morally wrong. The incarceration of the Respondent was not reported in any of the newspapers in the circulation area. There is evidence in the record that Respondent's absence created administrative problems for the superintendent and school board and interfered with the orderly education of students, although most of this disorder relates to the period after the Respondent's suspension, not during his short incarceration period.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that: The school Board of Madison County enter a Final Order finding that Respondent has not violated Section 231.36(4)(c) F.S., in that he has not been convicted of a crime of moral turpitude, and that Respondent has violated Section 231.44 F.S., by being willfully absent from duty without leave, and suspending him without pay from the first day of his absence without leave until the conclusion of the current school year. DONE and ENTERED this 2nd day of January 1990 at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1445 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 6 and 7 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate and/or unnecessary-material. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 17- 19. is rejected as mostly legal argument. Otherwise the record differs as set out in FOF 6-10. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 6-10 and COL 4. 8 is rejected as a conclusion of law, not a finding of fact. Respondent's PFOF: 1-16 and 18-24 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate, unnecessary, or cumulative material. 17 is rejected because it is contrary to the record as stated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 John R. Weed, P.A. 605 South Jefferson Street Perry, Florida 32347 Gene Stokes, Superintendent Madison County Schools 213 North Duval Madison, Florida 32340
Findings Of Fact James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.
Recommendation Withdraw the penalty of suspension without pay and substitute a written reprimand. DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond W. Gearey, Esquire Room 300, Building 5 1311 Winewood Boulevard Tallahassee, Florida 32301 Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56 AGAINST SUSPENSION BY THE DEPARTMENT OF OFFENDER REHABILITATION / OPINION AND ORDER Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser participating. This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions. While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible. The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact. Wherefore, it is ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied. DONE AND ORDERED this 10th day of June, A.D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICE I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977. CAREER SERVICE COMMISSION BY: Susan Turnbull
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
The Issue The issue for determination at the final hearing was whether the Respondent, City of Largo, as employer of Petitioner, Cleareather B. Gross, committed an unlawful employment practice by discriminating against Petitioner on the basis of race.
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, a black female, was hired as a Clerical Assistant I for the City of Largo's City Clerk's Office on September 21, 1981 and was assigned to the mail room. The Petitioner was hired for the position by City Clerk Kay Klinsport, a white female. The interview went well and, although there were other candidates for the position, the Petitioner was hired. Shortly after commencing work with the City Clerk's Office, the relationship between the Petitioner and her supervisor, Kay Klinsport, began to turn sour. Ms. Klinsport utilized very strict management and supervisory techniques and was not considered a very good personnel manager by many of her subordinates. The Petitioner is an extremely assertive person and takes pride in her willingness to "speak her mind" in all situations. Ms. Darlene Trowell, a white female, worked as a secretary in the City Clerk's Department during the time in question. Ms. Trowell also had trouble with Ms. Klinsport's management and supervisory techniques, but decided that the best way to deal with her was by keeping quiet and having limited contact. Ms. Klinsport antagonized several of her subordinates, both white and black. Ms. Klinsport decided that the Petitioner should be watched especially close and asked Ms. Trowell to "keep an eye on her (Petitioner)." This occurred as a result of Ms. Klinsport's management techniques, the Petitioner's overall assertive attitude and several complaints that were received regarding the Petitioner. Ms. Klinsport no longer works for the City of Largo. Darlene Trowell frequently complained to the City Manager regarding Ms. Klinsport's managerial techniques. The City of Largo has written guidelines governing employee conduct and discipline; those guidelines are titled "Code of Conduct and Disciplinary Measures" and a copy is provided to all employees. The guidelines require that supervisors pursue a philosophy of "progressive discipline" by administering gradually increasing disciplinary actions for each successive instance of employee misconduct. Possible disciplinary actions include oral reprimand, written reprimand, suspension, and ultimately, dismissal. Kay Klinsport received several complaints regarding the Petitioner, at least one of these complaints came from the Fire Chief and one complaint came from an employee of the Police Department. In her position with the City Clerk's Office, the Petitioner had occasion to come into contact with employees of the Police and Fire Departments. One of the complaints about Petitioner came from a black employee of the Police Department. On December 3, 1981, J. G. Knight, Fire Chief, sent an interoffice memorandum to Kay Klinsport complaining of the Petitioner's behavior. Specifically, the complaint alleged that Mr. Knight had received numerous verbal complaints and at least two written complaints of confrontations and harrassments by the Petitioner when it becomes necessary for fire department clerical employees to conduct business in or around the mail room. In addition, the complaint alleged that the Petitioner wrongfully opened a sealed envelope addressed to an employee of the fire department concerning the death of a member of his immediate family. On January 29, 1982 Kay Klinsport, City Clerk, issued the Petitioner a written reprimand. The reprimand specifically addressed friction between the Petitioner and other employees and noted the following: 11-16-81 - Failure to complete a project from personnel; 12-1-81 - A confrontation with Becky from the Fire Department; 12-10-81 - A confrontation with Barbara from Public Works Department Refusal to stamp signatures on annexation notices; A confrontation with Bonnie concerning Vivian and Marlene; Problem involving mail from P. O. Box 137 and directions given from Lynn in Finance; A confrontation with Charlotte regarding mail pick-up during distribution; 1-25-82 - Compensatory time confrontation as to date used; 1-26-82 - Attitude involved throughout day and into next.' The written reprimand stated that if Petitioner received another reprimand for the same reason, she would be suspended without pay for five days in accordance with personnel rules and regulations. On February 16, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. This reprimand involved a complaint that Ms. Klinsport had received from the Police Department concerning the Petitioner's use (or rather misuse) of the microfilming equipment. The Police Department allows the City Clerk's Office to use certain camera equipment for microfilming records. Specifically, the reprimand alleged that the Petitioner continued to run documents through the machine without proper preparation (i.e., removing staples and paperclips) despite being instructed as to the proper use of the equipment. Improper use of the machine by failing to remove staples and paperclips can cause the machine to malfunction because the staples and paperclips accumulate in the bottom of the machine. The written reprimand warned Petitioner that if she continued to misuse the camera equipment at the Police Department, she would be suspended for three days. On October 8, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. The written reprimand cited the following: 10-1-82 - Incident involving Lynn McKenzle, Finance Department, in failure to readily relinquish use of the computer; 10-6-82 - Copy paper incident with Brenda stemming from incorrect certificate of indebtedness turned into supervisor, department head; and Verbal complaints from several other employees. On the basis of this written reprimand, the Petitioner was suspended for five days without pay. The Petitioner was warned that should her attitude continue to interfere with subordinate and/or fellow employee relationships, she would be dismissed. On November 12, 1982, the Petitioner filed a charge of discrimination against the City of Largo with the Equal Opportunity Commission (case #025830181). On November 30, 1982 Kay Klinsport issued a written reprimand to Petitioner, Specifically, the reprimand addressed the Petitioner's poor attitude and ability to deal with subordinates and/or fellow employees and noted a confrontation between the Petitioner and "Kay and Leah." On the basis of this written reprimand, the Petitioner was suspended without pay for five days, with termination of employment to take effect on December 7, 1982. Effective July 4, 1982, the Petitioner was moved from Clerical Assistant I to Acting Clerical Assistant II. On September 29, 1982, the Petitioner sent a memo to Kay Klinsport indicating her desire to apply for the permanent position of Clerical Assistant II. On November 21, 1982, the Petitioner was returned to her permanent position of Clerical Assistant I. Lynn McKenzie, a white female, was hired to fill the Clerical Assistant II position. The Petitioner performed poorly on the Clerical Assistant II written test and was not hired for the vacant position. Of the five people that took the examination, the Petitioner placed last; however, Ms. McKenzie did not make the highest score. On March 21, 1982, the Petitioner's probationary appraisal was made by Kay Klinsport. In the evaluation, the Petitioner was rated "satisfactory" on overall performance. With the exception of "attitude," all factors were rated "satisfactory;" attitude was indicated as "generally neutral; disposition and outlook varied with mood." On September 21, 1982, the Petitioner received her "anniversary performance appraisal" which was completed by Kay Klinsport. The Petitioner's overall performance was rated as "satisfactory." Ms. Klinsport did, however, mention that the Petitioner's attitude varied with her mood. The Petitioner appealed her discharge and on September 19, 1983, an order of the Federal Mediation and Faciliation Service was issued directing that the City of Largo reinstate the Petitioner without any back pay to the position held by her on the date of her discharge. The Mediation order found that the Petitioner's conduct warranted a disciplinary penalty short of discharge. The Petitioner returned to work on October 5, 1983. However, the Petitioner resigned on February 4, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's Petition for Relief be denied in that no unlawful employment practice has been shown. DONE AND ORDERED this 31st day of December 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December 1985. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Ms. Patricia Catalano Personnel Analyst City of Largo Post Office Box 296 Largo, FL 33540 Ms. Cleareather B. Gross 915 North Garden Avenue Clearwater, FL 33515 Thomas M. Gonzalez, Esq. P. O. Box 639 201 E. Kennedy Blvd. Suite 838 Tampa, FL 33601
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner, Clarence Goosby, suffered racial discrimination when he was terminated from employment for fighting.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Clarence Goosby, is an African-American, who was employed by Respondent from October 13, 1999, until he was terminated on February 17, 2000. Respondent, Florida Extruders International, Inc., a manufacturing company located in Sanford, Florida, employs approximately 500 employees and is an "employer" as defined in Subsection 760.02(7), Florida Statutes. Some of the manufacturing activities at Respondent's plant are dangerous. One of these activities, melting aluminum scrap, takes place in the Cast House, which is noted as a "restricted area." Workers in the Cast House wear fire- protective clothing. On February 17, 2000, an African-American employee, Broderick Demps ("Demps"), was noticed in the Cast House where he had gone to use the restroom. A Caucasian supervisor, William Wilson ("Wilson"), questioned Demps regarding his presence in a restricted area and was advised by Demps that his supervisor had given him permission to use the restroom. Demps exited the Cast House and was followed by Wilson to another building, the Warehouse, Demps' workstation. Wilson met another supervisor, Frank Witherspoon ("Witherspoon"), as he entered the Warehouse. Wilson and Witherspoon located Demps' supervisor, Warren Lawrence ("Lawrence"), who advised that he had not given Demps permission to enter the Cast House. At this point, Demps began yelling at Wilson; his language was obscene and racial. The other supervisors tried, without success, to control Demps. Petitioner, hearing the altercation, left his work area in the same building, and recognized Demps (who he referred to as his "God-brother"), who continued yelling obscenities at Wilson. Petitioner's supervisor, Kenneth McKinney ("McKinney"), told Petitioner to return to his work area. Petitioner ignored McKinney's directive. Petitioner approached Wilson and the other supervisors and began yelling obscenities and racial slurs at Wilson. While standing in close proximity to Wilson and shouting at him, Petitioner made a quick move with his hand and arm. Wilson, believing that Petitioner was attempting to strike him, responded by striking Petitioner. Demps then struck Wilson in the head, knocking him to the floor. Both Petitioner and Demps jumped onto Wilson, striking and kicking him. Witherspoon, McKinney, and Lawrence physically pulled Petitioner and Demps off Wilson. Petitioner and Demps continued yelling obscenities and racial slurs at Wilson as they were being removed from the Warehouse. Petitioner officiously injected himself into a volatile situation involving Demps and his supervisors. By his confrontational conduct, Petitioner precipitated a physical altercation among himself, Wilson, and Demps. Witherspoon contacted Dana Lehman ("Lehman"), operations manager and highest-level executive at Respondent's plant, by radio and advised him of the altercation. Lehman immediately went to the Warehouse, where a crowd of employees had gathered in addition to the individuals mentioned hereinabove. Lehman inquired of several employees regarding the altercation but no one reported having seen it. Lehman attempted to speak to Petitioner and Demps about the incident. Petitioner and Demps were confrontational; Lehman obtained no relevant information from them. Lehman questioned McKinney, Lawrence, and Witherspoon and received their reports regarding the incident, which are detailed hereinabove. Wilson confirmed the descriptions and observations of the three supervisors/witnesses. McKinney, Petitioner's supervisor, recommended to Lehman that Petitioner be terminated for unauthorized leaving of his work area and instigating a fight with a supervisor. Respondent had in the past terminated several employees of different ethnicities for fighting. Respondent's employees' handbook (Policies and Procedures Handbook) reads, in pertinent part, as follows: Conduct Meriting Immediate Discharge Certain actions are such serious breaches of responsibilities to the company that no prior warnings or probation notices are required and may result in immediate discharge. For example: * * * Fighting or hitting another employee, or similar disorderly conduct, during work hours or on company premises. Willful disobedience (insubordination) Petitioner was aware of Respondent's prohibition against fighting and insubordination. Lehman discharged Petitioner on the day of the incident for fighting and insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 James W. Seegers, Esquire Valencia Percy Flakes, Esquire Akerman Senterfitt 255 South Orange Avenue Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
