The Issue Whether the Petitioner was discriminated against based upon his race when he was disciplined for absenting his post contrary to Chapter 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Willie B. Smith, is an African-American male. He is now and was at the time of the incidents involved in his complaint employed by the Respondent, Department of Children and Family Services, at Florida State Hospital as a guard in the forensic (prison) unit. The Petitioner is part of a bargaining unit that is represented by the Florida Police Benevolent Association. On November 15, 2001, at approximately 1:05 a.m., the Petitioner contacted his Shift Supervisor, Jimmie Williams, an African-American male, and requested to leave his assigned post in Tower B and go to Unit 3 at the hospital and pick up food from a fish fry. Williams approved the Petitioner’s leaving his post to get the food and to return to his post after getting the food. At 2:35 a.m., Williams was contacted on the radio by the Control Room Officer, Johnny Smith, who indicated that the Petitioner wanted to talk to him on the telephone. Williams provided Johnny Smith a telephone number at which the Petitioner could reach him, and the Petitioner called Williams a short time later. The Petitioner informed Williams that he had spilled diesel fuel on his uniform and asked permission to take the remainder of the shift off. Williams asked the Petitioner where he was, surprised that the Petitioner was some place other than at his post. The Petitioner refused to identify where he was, and Williams denied his request for leave. Realizing that the Petitioner was not at his post, Williams proceeded to Tower B and manned that post until the Petitioner arrived there at 3:04 a.m. When he arrived at Tower B, Williams asked the Petitioner where he had been, and the Petitioner stated he had been at the Florida State Hospital gas station. Williams had checked the Florida State Hospital gas station looking for the Petitioner and was aware that the Petitioner had not been there. At this point, angry words were exchanged and the Petitioner admitted that he had not been at the gas station. Williams wrote up an incident report that initiated a formal investigation into the Petitioner's having absented himself from his post while on duty without proper authorization. The Petitioner was advised of the investigation, and he requested that the PBA represent him in the investigation pursuant to the provisions of the collective bargaining agreement. At the Petitioner's specific request, Steve Mears, from the Tallahassee Office of the PBA, represented the Petitioner in this matter. During the course of a break in a meeting held with regard to the investigation, the Petitioner mentioned to Mears voluntarily changing duty stations, and Mears raised this request with representatives of the Respondent, including William T. Parker, now Chief of Security. As a result, the Petitioner was re-assigned from the forensic unit to the central forensic unit because this was the only place where there was a vacancy. His shift and days off remained the same, which did not constitute a transfer under the terms of the contract. Such a re-assignment was not subject to being grieved under the terms of the bargaining agreement. See testimony of Parker and Mears. The Petitioner's days off changed from the first and third weeks of the month to the second and fourth weeks of the month, but the days of the week remained the same. Although the evidence supports a finding that this move was voluntary, it is not material because, under terms of the bargaining agreement, such a re-assignment was not subject to a grievance. The investigation established sufficient cause for the Respondent to issue an official letter of reprimand to the Petitioner for absenting his post without permission. Pursuant to internal policy, the Petitioner's new supervisor, Roger Howell, who had had nothing to do with the incident upon which the reprimand was based, issued the letter. See testimony of Howell and Bryant. The Respondent introduced the Employee's Handbook, dated Mary 29, 2001, which the Petitioner had received. The book contains the Standards for Disciplinary Action, which include absences without authorized leave. This provision provides that for the first occurrence of Absence Without Authorized Leave, the section under which the Petitioner was disciplined, the violator can be given a range of punishments from a written reprimand to dismissal. See testimony of Bryant. Evidence was received that these penalties have been imposed upon employees of the Respondent without regard to race or gender. See testimony of Williams. At the hearing, the Petitioner expressed his concern that his reprimand had been signed by someone who had no knowledge of the incident, and stated that he felt he had permission to leave his post. He also introduced a doctor's excuse (Petitioner's Exhibit 2); however, the date of the doctor's visit did not relate to the date of the incident. The supervisor who signed the letter of reprimand and the personnel specialist who prepared the letter testified that it was policy for an employee's supervisor to sign the reprimand, even if he or she personally did not have knowledge of the events. Mr. Williams testified regarding his authorization to the Petitioner to leave his post to get food. He was very credible. He expected the Petitioner, in accordance with regular procedure, to leave his post, get his food, and return to the post immediately, being absent from the Tower for approximately 30 minutes. This was the normal process for getting food during a shift. The Petitioner was gone for two hours, and gone for over an hour without Williams being aware that Tower B was not covered. There was significant evidence introduced that none of the actions complained of by the Petitioner were motivated by racial animus. The disciplinary action taken by the Petitioner was at the lower end of penalties that could have been imposed. The complainant, Williams, was also an African-American. The PBA representative, whom the Petitioner specifically requested over the regular one at the hospital, testified regarding the events leading up to the Petitioner's re-assignment. The Petitioner sought a change of assignment and voluntarily accepted the change. See the testimony of Mears and Parker. There was no evidence adduced to show pretext.
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 dismiss the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 31st day of March 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of March, 2004. COPIES FURNISHED: Anita L. Davis, Qualified Representative 708 Brag Drive Tallahassee, Florida 32305 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Charles W. Leverson, Sr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request principally on the ground that Petitioner had minimized or denied the gravity of his disqualifying offenses. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on December 16, 1990, and March 24, 1992. On the first date, Petitioner was arrested for the offense of aggrevated battery on his wife, a misdemeanor under Section 784.04, Florida Statutes (1990). On the second date, Petitioner was again arrested for five offenses, including battery on his wife in violation of Section 784.03, Florida Statutes (1991). As to the first charge, on January 26, 1993, Petitioner entered a plea of nolo contendere to the charge of battery and was placed on one year's supervised probation. He was also required to "[s]pend 15 weekends in the county jail." In addition, Petitioner was ordered "not [to] possess or consume any alcohol during the term of [his] probation," and to "[c]ontinue with counseling" (of an undisclosed nature). As to the second charge, Petitioner was found guilty by a jury on July 24, 1992, of committing battery on his wife in violation of Section 784.03, Florida Statutes. A "not guilty" verdict was entered as to the remaining four charges. The record does not indicate the sentence, if any, that he received for this offense. Petitioner successfully completed all terms of his probation. Since his arrest in March 1992, he has not consumed any alcoholic beverages. This is an important consideration since both disqualifying offenses occurred when he was intoxicated. Petitioner began working at FSH on September 26, 1979. He was first employed as a support service aide but was eventually promoted to the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Because of a background screening which occurred in 1997, Petitioner's disqualifying offenses were discovered, and he was forced to resign effective February 12, 1998. He has requested an exemption so that he can return to his employment. Since being forced to resign some four months ago, he has not been employed. The two disqualifying offenses involve battery on Petitioner's long-time wife, Shirler. In both cases, she suffered injuries serious enough to require treatment at a local hospital. Shirler says, however, that Petitioner has "changed" since his 1992 arrest, and he no longer drinks, is communicative with her and the three children, and is a good father. Petitioner attends church, is a member of a lodge in Quincy, Florida, and has a much better attitude since he stopped drinking. He has received good work evaluations during his most recent years of employment at FSH. Former co-workers and supervisors attested to the fact that Petitioner has good rapport with his co-workers and residents, and he performs his stressful job with a "cheerful" and "pleasant" attitude. He was also described as one of the "better" employees in the forensic unit. In March 1987, or more than eleven years ago, Petitioner received a five-day suspension because of an altercation with an inmate in the FSH forensic section laundry room. The suspension was meted out after Petitioner became involved in an argument with an inmate and drew an opened knive in a threatening fashion. Although Petitioner denied that the blade was exposed, testimony by a co-worker established that it was exposed in a threatening fashion. The altercation was resolved, however, before any violence occurred. In mitigation, it was established that Petitioner's possession of a knive in the laundry room was not unlawful since it was necessary for him to use a knive to open the sealed buckets of detergents. On October 13, 1993, Petitioner received a written reprimand for "Abusive and/or Threatening Language." On that occasion, Petitioner was instructed by his supervisor to help fold some laundry in the laundry room. Petitioner replied that he would not and told him "to get off my fucking back." Petitioner also pointed his fist at the supervisor in a threatening manner and "threatened to kick his butt." On June 27, 1994, Petitioner was suspended for fifteen work days effective July 8, 1994, for using threatening and/or abusive language towards a supervisor. This disciplinary action was taken after Petitioner had again refused to comply with instructions by his supervisor. On that occasion, he became "real mad," called her a "motherfucker," shook his fist at her, and threatened to "get her." Although the supervisor stood her ground against Petitioner, she was "afraid" for her safety. Petitioner was less than candid in describing the incidents which led to him receiving disciplinary action by his employer in 1987, 1993, and 1994. He has, however, expressed remorse for striking his wife in 1990 and 1992, and he regrets the embarrassment he caused his wife and children. For the last four years, Petitioner has had a blemish-free record at FSH, including good evaluations from his supervisors and a reputation as one of the "better" employees in his section. Given these considerations, it is found that Petitioner has sufficiently rehabilitated himself since the disqualifying incidents, and that he will pose no threat to the FSH clients and inmates.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 4th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
Findings Of Fact Respondent is the state agency responsible for the licensure of community association managers. Petitioner, Anthony G. DiCarlo, submitted to Respondent an Application for Licensure as a Community Association Manager dated August 25, 1992. Respondent issued a Notice and Order of Rejection of the application on February 2, 1993. Licensure as a community association manager is required for a person performing in the State of Florida community association management services to one or more associations containing 50 units or having an annual budget or budgets in excess of $100,000. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. The statute is a consumer protection measure designed to provide some assurance to associations that a licensed manager will be trustworthy and have a certain level of competence. A community association manager performs duties which require specialized knowledge, judgment, and managerial skill. The community association manager typically manages the financial affairs of a community association, including the accounts receivable and the accounts payable. The manager usually writes checks, disburses association funds, invests the reserve funds, prepares the budget, and monitors the budget. Depending on the size of the association, a community association manager may have access to substantial sums of money in the form of cash, credit cards, and checking accounts. Some community association managers manage associations with a large number of absentee owners. Because of lessened oversight, those managers often have increased authority and responsibility. Pursuant to Section 468.433(4), Florida Statutes, an applicant must possess good moral character and pass an examination to be entitled to licensure as a community association manager. Rule 7D-55.004(3), Florida Administrative Code, has been duly adopted by Respondent and provides, in pertinent part, as follows: (3) Good Moral Character. (a) When the application has been determined to be in acceptable form, the division shall evaluate the application and make approp- riate inquiry to determine the applicant's moral character. For the purpose of this rule the division shall consider the follow- ing factors as bearing upon good moral character: The affirmation of at least three char- acter references furnished by the applicant for 3 years or longer . . . The completion of a criminal history check by the Florida Department of Law En- forcement that reveals no convictions of a felony or of a misdemeanor involving moral turpitude. . . . * * * Other relevant information generated in the course of the application process which bears upon the applicant's moral character. * * * (5) If upon completion of its evaluation of the moral character of an applicant, the division concludes that the applicant does not posses good moral character, the division shall proceed as provided in rule 7D-55.001 (1), Florida Administrative Code. Rule 7D-55.0011(1), Florida Administrative Code, provides as follows: The division, prior to taking final agency action which may adversely affect the substantial interests of a person, including but not limited to the denial of a license application, shall notify that person of the intended agency action and of his right to a formal hearing or an informal proceeding as provided by section 120.57, Florida Statutes, and chapter 7-4, Florida Admini- strative Code. Faye Mayberry, bureau chief of Respondent's Bureau of Condominiums, testified as to Respondent's policies. It is Respondent's policy to determine that an applicant has good moral character before permitting the applicant to sit for the licensure examination. Respondent has consistently denied licensure to applicants who have committed a theft-related felony or who have shown a pattern of disregard for the law. Respondent does not consider such facts to be a permanent bar to application, but it has adopted no policy as to the evidence of rehabilitation an applicant must establish following the conviction(s) before Respondent will determine that an applicant has been rehabilitated. Instead, Respondent makes a determination as to whether an applicant has established that he has good moral character on a case by case basis. Respondent considers all information that has been made available to it in making its determination. Item 14 on the form application for licensure requires the applicant to answer the following: "Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld?" Petitioner answered that question in the affirmative. Thereafter the form instructs an applicant who has answered the question in the affirmative to ". . . attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." In response to those instructions, Petitioner submitted the following: U.S. Federal Court - Newark, New Jersey 8/11/81 Transporting securities taken by fraud across state lines. Sentenced to five (5) years probation. Awarded early term- ination. County Court - Broward County, Florida 1/8/84 Grand Theft. Sentenced to eighteen (18) months probation. Awarded early term- ination. County Court - Broward County, Florida 3/23/89 Grand Theft. Sentenced to seven (7) years probation. Awarded early termination. On September 24, 1992, Sharon L. Guthrie, Supervisor of Education for Respondent's Bureau of Condominiums, wrote Petitioner about his application and stated, in part, as follows: As part of the application process, the Division is required to make appropriate inquiries to determine the applicant's moral character. Rule 7D-55.004(4), Florida Admini- strative Code, requires the Division to com- plete the moral character evaluation within 30 days after receiving the criminal history check. After reviewing the information on record with the Florida Department of Law Enforcement, it appears that your application was not complete with regard to your criminal history. Based on this information, we are unable to approve your application for licen- sure; however, if you notify us, in writing, that you would like to waive the requirement that the Division complete its evaluation within 30 days, we will continue our evalua- tion of your moral character. In addition, you must provide a complete, signed state- ment of the charges and facts, together with the dates, name and location of the court in which the proceedings were held, and copies of any pertinent court records. In response to the letter of September 24, 1992, Petitioner waived the 30 day requirement and enclosed a copy of the information he had submitted along with his application. He provided no additional information about his criminal history. Ms. Mayberry made the recommendation to Henry M. Solares, Director of the Division of Florida Land Sales, Condominium and Mobile Homes, that Petitioner's application be denied. Ms. Mayberry considered all the information Petitioner submitted in support of his application. There were three reasons for Ms. Mayberry's initial recommendation to deny the application. First, Petitioner had committed three felonies involving theft. Respondent considers theft to directly reflect on the ability of a community association manager to honestly fulfill his or her duties since the manager has the responsibility of managing the association's finances and has access to bank accounts and credit cards. Second, Ms. Mayberry considered that the last crime was committed relatively recently. Third, Ms. Mayberry considered that the multiple convictions indicated a pattern of disregard for the law by Petitioner. Mr. Solares accepted Ms. Mayberry's recommendation and entered on behalf of Respondent on February 2, 1993, a Notice and Order of Rejection, which notified Respondent that Respondent intended to reject his application and provided him with notices as to his rights to contest the intended action. The order found that Petitioner failed to demonstrate his eligibility for licensure as a community association manager. The order provided, in part, as follows: . . . Specifically, in violation of Rule 7D-55.004(3)(a), Florida Administrative Code, relevant information has been generated in the course of the application process which indicates that you have failed to demonstrate good moral character for the following reason: Your criminal history reveals that you have been convicted of a felony directly related to the ability to perform the duties of a community association manager, and you have failed to provide, or been unable to provide, sufficient information to establish your good moral character notwithstanding your conviction. Thereafter, Petitioner timely challenged the intended agency action and this proceeding followed. At the formal hearing, evidence was presented that was not available to Respondent when the initial decision was made to deny the application. This evidence elaborated on Petitioner's criminal history and pertained to efforts by Petitioner to rehabilitate himself. Between 1975 and 1980, Petitioner was employed in a position of trust as an administrator at a New Jersey rehabilitation hospital. During that period of employment, Petitioner embezzled money from his employer by falsifying the hospital's accounts to reflect overpayments and deposited the overpayment in his personal bank account in New Jersey. He then transported the embezzled funds across state lines to his personal bank account in New York. On August 11, 1981, Petitioner entered a plea of guilty in federal court in Newark, New Jersey, of the felony offense of the interstate transportation of securities taken by fraud. He was sentenced to 10 years imprisonment, but the sentence was suspended and he was placed on probation for a period of five years, which he successfully completed. Petitioner contends that his abuse of alcohol during these years contributed to his theft from his employer. The total sum he stole over this extended period of time was not established. On March 9, 1984, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to a felony charge of grand theft based on a shoplifting incident. He was adjudged guilty and placed on probation for a period of 18 months. Among the terms of probation was the requirement that he attend AA meetings three times per week. Petitioner successfully completed his probation which included the requirement that he attended AA meetings at Broward Alcoholic Rehabilitative Counseling. Petitioner thereafter resumed his prior abuse of alcohol and cocaine. On March 23, 1989, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to two felony counts of grand theft. These thefts occurred over a two year period while Petitioner was employed by Anesthesiology Associates between 1986 and 1988. Using tactics similar to those he used in New Jersey, Petitioner embezzled over $100,000 from his employer. Petitioner was sentenced to seven years probation. The terms of probation included a requirement for community service, payment of restitution, and treatment for drug and alcohol addiction. Petitioner made full restitution over a 21 month period to Anesthesiology Associates, performed 350 hours of community service, and successfully completed the court ordered treatment for alcohol and drug addiction. On January 8, 1991, Petitioner's probation was terminated. On September 19, 1991, the Florida Office of Executive Clemency restored Petitioner's civil rights, except for the right to possess or own a firearm, which were lost by the felony convictions. Petitioner asserts that his criminal activities were the product, in part, to his addiction to alcohol and to cocaine. These addictions resulted, according to Petitioner, because of stress associated with a congenital heart condition. Petitioner underwent open heart surgery in March 1987 to correct this defect. He nevertheless continued to abuse alcohol and cocaine after his surgery. His surgery occurred while he was employed by Anesthesiology Associates, and he continued to embezzle funds from his employer until he was caught. While Petitioner's addictions may have been a contributing factor to his criminal activity, the record in this proceeding fails to establish that his addictions caused his criminal activities. Petitioner was a long time abuser of alcohol and began abusing cocaine when he moved to Florida in 1981. Petitioner has received treatment for his addictions on at least two occasions. The first occasion was as a condition to his probation following the 1984 conviction of grand theft. The second was following the discovery of his thefts from Anesthesiology Associates. Petitioner began extensive alcohol and substance abuse counseling and treatment on an outpatient basis from Clinical Provider Organization, Inc., a private outpatient psychiatric/ psychological clinic in Broward County. He was admitted on November 11, 1988, and discharged on March 20, 1989. Dr. Christopher J. Fichera was the clinical director who supervised Petitioner's involvement in the program, supervised the staff counsellors dealing with him, and treated him on an individual basis. Carol L. Disher, a certified addictions specialist, was the staff person who led Petitioner's group therapy sessions at Clinical Provider Organization. Both Dr. Fichera and Ms. Disher were of the opinion that Petitioner had successfully completed their program. Petitioner was discharged because he had completed the program and because of the condition of probation following the 1989 conviction required that Petitioner participate in an inpatient program. Mr. Cipolla and Rabbi Gross continue to provide support for Petitioner. Although both of these witnesses see Petitioner on a periodic basis, neither has observed any indication that Petitioner has resumed abusing alcohol or cocaine. The greater weight of the evidence establishes that Petitioner is successfully recovering from his addiction to alcohol and cocaine and that he has been alcohol and cocaine free for approximately five and a half years. Petitioner asserts that the testimony of Dr. Fichera and Ms. Disher link the Petitioner's criminal conviction to his alcohol and/or substance abuse. While their testimony may be construed in generalities to support that contention, it is clear that Dr. Fichera was unaware of Petitioner's conviction in New Jersey or his 1984 conviction in Florida. Dr. Fichera learned of the first two convictions when his deposition was taken in connection with this proceeding. Dr. Fichera was of the opinion that the information was significant and may reflect underlying character problems in addition to the addictions. An applicant is required to submit with his or her application three character references on forms supplied by Respondent. Attached to Petitioner's application were completed character reference forms from Beverly Baran, Michael Cipolla, and Rabbi Milton J. Gross. Each of Petitioner's character references testified at the formal hearing and each was of the opinion that Petitioner was presently of good moral character. Beverly Baran and her husband, who is an anesthesiologist, were shareholders in Anesthesiology Associates and met Petitioner when he became employed as the business manager for that business. Ms. Baran and her husband became very friendly with Petitioner and his wife. Ms. Baran was aware of Petitioner's embezzlement from Anesthesiology Associates, but she was unaware of the first two felony convictions. She was told for the first time at the formal hearing of the two prior felony convictions. Ms. Baran testified that she considers Petitioner to presently be of good moral character, and based that opinion on his rehabilitation from alcohol and cocaine. Michael Cipolla was Petitioner's sponsor at AA. He had known Petitioner for approximately eight years as of the formal hearing, and was of the opinion that Petitioner had been alcohol and cocaine free for approximately five and a half years. Mr. Cipolla was of the opinion that Petitioner was presently of good moral character. Mr. Cipolla sees Petitioner on an irregular basis. He testified that he sees him sometimes once a month, sometimes three or four times a month, and sometimes every other month. Rabbi Milton Gross had known Petitioner for approximately 10 years at the time of the formal hearing. Rabbi Gross has provided spiritual counseling to Petitioner at different times. Rabbi Gross was aware of Petitioner's alcohol and cocaine addiction and his past criminal behavior. Rabbi Gross knew of Petitioner's rehabilitation efforts and considered Petitioner to presently be of good moral character. Rabbi Gross sees Petitioner approximately once every three weeks. There was minimal evidence as to Petitioner's employment since his discharge from Anesthesiology Associates.1 Petitioner's generalized testimony as to his employment does not establish the extent of his responsibilities or the extent to which he had access to his employer's financial records, bank accounts, and credit cards. Consequently, the testimony that there have been no allegations of embezzlement since 1988 is insufficient to establish that there has been a change in Petitioner's character. The character witnesses who testified on Petitioner's behalf established that Petitioner has made commendable efforts to rehabilitate himself from alcohol and cocaine addiction. While the sincerity of these witnesses cannot be doubted, their opinion testimony assumed that all of Petitioner's criminal activity was caused by his addiction to alcohol and/or his addiction to cocaine. There was no competent, persuasive evidence to support that assumption, and this testimony does not establish that Petitioner has the moral character to honestly perform the duties and responsibilities of a community association manager. Ms. Mayberry, who attended the formal hearing on behalf of Respondent, was still of the opinion that the application should be denied following the presentation of Petitioner's evidence at the formal hearing. Her initial reasons for rejecting the application had not changed. Ms. Mayberry gave as an additional reason for rejecting the application what she considered evidence of Petitioner's lack of candor during his application process. Respondent asserts that Petitioner was not candid about his cocaine addiction in response to questions posed by Respondent's counsel at his deposition, and that he did not submit evidence of his rehabilitation with his application because it would reveal his prior addiction to cocaine. While he was not as forthcoming as one might expect, Petitioner did not lie in response to questions about his addiction and rehabilitation. He indicated in several responses that there was an alcohol and substance abuse problem, but he was not directly asked during the deposition about the nature and extent of his addiction. The argument that Petitioner attempted to hide his cocaine addiction is weakened when one considers that the deposition of Dr. Fichera, during which Petitioner's addiction to cocaine was fully discussed, was taken at the instance of the Petitioner. While Petitioner's application made no reference to his addictions or to his rehabilitation therefrom the application form did not solicit that information. It is concluded that Petitioner did not demonstrate a lack of candor by his application or during his deposition that establishes a lack of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which denies Petitioner's application as a community association manager. DONE AND ORDERED this 10th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 1993.
The Issue Whether petitioner abandoned her position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact The petitioner was first employed by the State of Florida with the Department of Health and Rehabilitative Services on May 2, 1980. At the time, the petitioner owned her own accounting firm. However because she intended to remain in State employment for a minimum of ten years and did not want to jeopardize her position with HRS, she closed out her accounting firm transferring her clients to another member of Florida State Accounting Association. On October 28, 1985, petitioner became ill with acute bronchitis. She did not return to work until November 8, 1985. During that period of time, she was on authorized leave. On Saturday, November 23, the petitioner had a relapse. After calling her doctor, petitioner resumed taking the medication that had previously been prescribed and stayed in bed. On November 25, 1985, Angela Gary, a co-worker, went by Petitioner's home to give her a ride to work. Petitioner informed Ms. Gary that she would not be going to work that day. Petitioner did not explain to Ms. Gary that she was ill and did not ask Ms. Gary to take any message to the petitioner's supervisor, Ms. Matson, or to the District Fiscal Officer, Mr. Fisher, who was in charge of the entire accounting section. 1/ Mr. Fisher was aware that Ms. Gary was to provide a ride for petitioner on November 25, 1985. Therefore when petitioner did not report to work, Mr. Fisher asked Ms. Gary if she had remembered to go by petitioner's house. Ms. Gary told Mr. Fisher that she had remembered to go by the house but that petitioner said that she wasn't going to work. On Tuesday, November 26, Ms. Gary again went by petitioner's home to drive her to work. At that time, petitioner told Ms. Gary that she wouldn't be going to work and that Ms. Gary did not have to come by her house on Wednesday unless the petitioner called her. Because petitioner did not feel capable of returning to work on Wednesday, she did not call Ms. Gary. Therefore, Ms. Gary did not go by petitioner's house on Wednesday November 27, 1985. At no time during the three day period that she was absent from work did the petitioner telephone her supervisor to inform her of the situation. Prior to this three-day period, petitioner had been absent on several occasions and had always called her supervisor to inform the supervisor that she would be unable to report to work. She was quite familiar with the procedure that she needed to follow. Petitioner had received a copy of the HRS Employee Handbook, HRSP 60-1, which includes procedures to be followed to obtain authorized leave. The procedure for sick leave includes the following: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness....Your supervisor should also be given an estimate of the length of the absence. Medical certification may be required. Further, within the accounting section, the employees had been specifically advised that they had to speak directly to their immediate supervisor when calling in sick. Although petitioner was aware of the sick leave procedure, she did not attempt to call her supervisor at any time during the three-day period she was absent. Her only reason for not calling was that the medication she was taking made her "woozy" and that she slept most of the time. There was no evidence to suggest that petitioner was incapacitated to the degree that she was unable to call her supervisor. 1O. November 27-28 were holidays. On December 2; 1985, the following Monday, petitioner called her supervisor in the morning to inform the supervisor that she would be late to work. At that time, petitioner was informed that she was no longer employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services in deeming Virginia I. Lee to have abandoned her position and resigned from the Career Service. DONE and ENTERED this 29th day of April, 1986, in Tallahassee Florida. DIANE A. GRUBBS 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 29th day of April, 1986.
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s teaching certificate, and if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds a teaching certificate issued by the Florida Department of Education, No. 608837, covering the areas of pre-kindergarten and primary education. Respondent?s current teaching certificate was issued as a result of the entry of a September 18, 2007, Settlement Agreement that resolved an initial denial of the teaching certificate for a series of pleas or convictions for financial crimes, including Public Assistance Fraud. The Settlement Agreement authorized the issuance of Respondent?s teaching certificate subject to a letter of reprimand and a two-year period of probation. The Settlement Agreement was adopted by the Education Practices Commission by Final Order entered on January 25, 2008. Respondent was employed by the Gadsden County School Board in various positions since 2005, most of them being as a teacher at the elementary school and kindergarten level. Respondent received instructional employee evaluation ratings of “very effective” for the 2006-2007 school year, and of “effective” for the 2007-2008, 2008-2009, and 2009-2010 school years. Respondent was suspended from teaching by the Gadsden County School Board on January 3, 2011 for issues relating to her December 21, 2010, arrest for drug-related offenses. The suspension was upheld at a meeting of the Gadsden County School Board on January 25, 2011. Respondent was rehired as a Gadsden County substitute teacher in February, 2011, and worked in that capacity at two schools until December 2012. The decision to rehire was made to accommodate Respondent with lawful employment so as to meet the terms of her probation. Administrative Complaint On November 30, 2012, Petitioner issued the Administrative Complaint that forms the basis for this proceeding. The Administrative Complaint identified the offenses that underlie the five specified counts. Resisting an Officer - September 29, 2007 On September 29, 2007, Officer Clark was in the process of effectuating an arrest of Respondent?s son at a convenience store located near Respondent?s home. According to Officer Clark, Respondent?s son was resisting efforts to place him in handcuffs. While Officer Clark was attempting to take Respondent?s son into custody, Respondent appeared on the scene and attempted to intervene in the incident. The nature of the intervention is disputed. When a back-up officer arrived, Officer Clark instructed him to take Respondent into custody. The only evidence of the disposition of the charge of resisting an officer was a printout of the case docket from the website of the Leon County, Florida Clerk of Court. The printout is hearsay, and comes within no exception to the hearsay rule set forth in section 90.803, Florida Statutes. Disposition of the charge of resisting an officer was not supported by competent, substantial, and non-hearsay evidence. Thus, no finding can be made to substantiate that charge. Driving Without a Valid License - January 2, 2010 On January 2, 2010, Respondent was driving her vehicle in Tallahassee. She was stopped by Officer Hurlbut for a traffic infraction. Respondent presented Officer Hurlbut with a Florida driver?s license. When Officer Hurlbut ran the driver?s license through his onboard computer, he discovered that the driver?s license produced by Respondent was not current, and that Respondent?s driver?s license had been suspended. Officer Hurlbut issued a citation and notice to appear to Respondent, and seized her expired driver?s license and her automobile tag. On April 14, 2010, Respondent entered a plea of no contest to a charge of operating a motor vehicle without a valid driver?s license, a second-degree misdemeanor, was adjudged guilty, and was placed on probation for a period of six months. Driving Without a Valid License/Violation of Probation - September 26, 2010 On September 26, 2010, Respondent was stopped by Highway Patrol Sergeant Teslo for driving without a seatbelt. Respondent had no identification. Sergeant Teslo asked Respondent to write her name and date of birth on a sheet of paper so that he could run it through his onboard computer. The name and birthdate provided by Respondent were not those of Respondent. When Sergeant Teslo determined that the name and birthdate were not those of Respondent, he returned to her car, whereupon Respondent provided him with her real name and birthdate. When Sergeant Teslo ran Respondent?s name and birthdate, he discovered that Respondent was operating her vehicle while her driver?s license was suspended. He issued a traffic citation, and waited for a licensed driver to come and pick up Respondent. As a matter of discretion, Sergeant Teslo did not charge Respondent with providing false information. On September 30, 2010, an affidavit of probation violation was executed which alleged that Respondent violated her April 14, 2010, sentence of probation by driving with a suspended license. A warrant was issued, and Respondent was taken into custody. Respondent entered a plea of no contest to a reduced charge of operating a motor vehicle without a valid driver?s license. Adjudication was withheld. Drug Offenses - December 9, 2010 On December 9, 2010, after a period of investigation and surveillance of Respondent?s home, the Tallahassee Police Department executed a search warrant for the home. Respondent was not at the home when the search was conducted. Respondent arrived at her home while the search warrant was being executed. There were numerous police cars around the house. Respondent asked a neighbor to watch the house and retrieve the keys when the search was done while she took her pit bulldog, which had been Tasered during the execution of the warrant, to the veterinarian. The neighbor later called Respondent to advise her that drugs were found during the search. Thus, the search and its results were openly known in the area. During the execution of the search warrant, two of Respondent?s sons were taken into custody. The search of the home uncovered a significant quantity of powdered and crack cocaine, cannabis, and various articles of paraphernalia located in rooms throughout the home, including the kitchen and Respondent?s bedroom. On December 21, 2010, Respondent was arrested for a number of drug-related offenses. On February 11, 2011, an Information was filed charging Respondent with trafficking in controlled substances, a felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the second degree; and possession of paraphernalia, a misdemeanor of the first degree. On November 15, 2011, Respondent entered into a deferred prosecution agreement for the charged offenses subject to Respondent?s compliance with various terms of the agreement. Public Assistance Fraud - July 25, 2012 On July 6, 2012, an affidavit was executed by Department of Economic Opportunity Investigator Marshall, in which it was alleged that Respondent made false statements that she was unemployed and not receiving wages or benefits from June 19, 2010 through February 26, 2011, so as to qualify for reemployment assistance benefits for which she was otherwise not eligible. Respondent asserted that she was, in fact, unemployed during the summer of 2010, since her annual contract expired at the conclusion of the 2009-2010 school year, and was not renewed until the commencement of the 2010-2011 school year. She further asserted that she was suspended without pay commencing on January 26, 2011. However, the evidence is undisputed that Respondent was employed and receiving wages for, at a minimum, the start of the 2010-2011 school year1/ until January 26, 2011. On July 25, 2012, an Information was filed charging Respondent with Unemployment Compensation Fraud, a felony of the third degree, for making false statements to obtain or increase benefits under Florida unemployment compensation laws. On November 2, 2012, Respondent entered a plea of nolo contendere to the felony charge of unemployment compensation fraud, was adjudicated guilty, was placed on probation for a period of five years, and was ordered to pay restitution to the Florida Reemployment Compensation Trust Fund in the amount of $7,972.00 and to pay an additional $750 in court costs.
Recommendation Upon consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED that Petitioner enter a final order permanently revoking Respondent?s teaching certificate, No. 608837. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. 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 Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER 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: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Petitioner’s Petition for Relief should be dismissed for failure to allege facts sufficient to invoke the jurisdiction of the Florida Commission on Human Relations (the “FCHR”) under section 760.10, Florida Statutes.1 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
Findings Of Fact The Department is an employer as that term is defined in section 760.02(7). The Petition for Relief alleges the following ultimate facts, which are accepted as true for purposes of ruling on the Motion: I believe I have been discriminated against based on my race (Black), sex (male), and age (over 40). I also believe I am being retaliated against for filing a complaint with Florida Commission on Human Relations and in Federal Court. I have been working within the Gadsden County School system since January 2008 as a substitute teacher and have teaching experience. Around or on October 2020, I applied for a Social Studies position and was not offered an interview by the principal because DOE deliberately and maliciously held clearance letter to deny employment. Section 760.10 titled “Unlawful employment practices,” is the statute under which the FCHR exercises jurisdiction of the Petition for Relief. Section 760.10(1)(a) states that it is an unlawful employment practice for an employer to discriminate against any individual “with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” The Motion states that Petitioner is not, and never has been, an employee of the Department. Respondent’s Chief of Human Resource Management, David Dawkins, conducted a system-wide search and verified that Petitioner has never been employed by the Department. Mr. Dawkins’s affidavit to that effect was attached to the Motion. Mr. Jones did not contest the contents of Mr. Dawkins’s affidavit. The Motion also references section 760.10(5) as a possible avenue under which Mr. Jones might seek relief against the Department. Section 760.10(5) provides: Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. In theory, the Department’s alleged “deliberate and malicious” withholding of Mr. Jones’s “clearance letter,” i.e., a Temporary Certificate to teach, could constitute a violation of section 760.10(5). However, the Department pointed out that after Mr. Jones applied for a Florida Educator Certificate, the Department sent him an “Official Statement of Status of Eligibility” on October 12, 2017. A copy of the Department’s letter to Mr. Jones was attached to the Motion. The letter informed Mr. Jones that he was eligible for a Temporary Certificate covering Social Science (Grades 6-12), if he completed the following requirements and documented them to the Bureau of Educator Certification (“BOE”): verification of employment and request for issuance of certificate on the appropriate certification form from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program. results of your fingerprint processing from the Florida Department of Law Enforcement and the FBI. Your employer will assist you in completing the fingerprint process. If your application or fingerprint report reflects a criminal offense or suspension/revocation record, your file will be referred to Professional Practices Services for further review. Issuance of your certificate will be contingent upon the results of this review. The Motion states that Mr. Jones submitted only the results of his fingerprint processing to BOE. Therefore, BOE was legally precluded from issuing a Temporary Certificate to Petitioner. Attached to the Motion was the affidavit of Daniel Moore, Chief of BOE, attesting to the fact that a request for issuance from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program is required in order for BOE to issue a Temporary Certificate. Mr. Moore’s affidavit is confirmed by Florida Administrative Code Rule 6A-4.004(1)(a)2., requiring verification of full-time employment by a Florida school district before a Temporary Certificate may be issued. Mr. Jones did not contest the contents of Mr. Moore’s affidavit. Based on the foregoing, the Motion requests entry of a summary recommended order of dismissal because Mr. Jones’s pleadings and admissions of fact, including those in his response to the Motion, are facially and conclusively insufficient to prove that he was ever an employee of the Department, or that the Department’s failure to issue a teaching certificate to Mr. Jones was based on anything more than the ministerial operation of the Department’s own rule. Mr. Jones’s response to the Motion does not address, and therefore appears to concede, the Department’s statement that he is not and has never been an employee of the Department. Mr. Jones did not allege that he has ever been an employee of, or an applicant for employment by, the Department. Mr. Jones’s response does not address the fact that the Department’s rule forbids it to issue a Temporary Certificate without verification of full- time employment. Rather, Mr. Jones pursues an argument alleging that the denial was somehow based on his criminal record and that denial on that basis is discriminatory because of the disproportionate percentage of African American and Latino citizens who have criminal records in comparison to Caucasians. Mr. Jones claims that the Department’s stated reason for denying him a Temporary Certificate was pretextual and that the actual reason was racial discrimination premised on his criminal record. In a related case, Mr. Jones has alleged that the Gadsden County School Board declined to hire him because of his criminal record, and that this declination was a pretext for discrimination based on race, age, and/or sex. The merits of Mr. Jones’s case against the local school board and its subsidiary institutions are not at issue here. The question in this case is whether the Department had anything to do with Mr. Jones’s failure to gain employment by the Gadsden County School Board. The undisputed facts establish that the Department’s role in this process was purely ministerial. Had Mr. Jones secured employment, the school that hired him would have requested the issuance of a Temporary Certificate by the Department. By operation of rule 6A-4.004(1)(a)2., the Department would have issued the Temporary Certificate. The Department had no role in the decisions of the local school officials to hire or not hire Mr. Jones. It is found that Mr. Jones has not alleged facts sufficient to state a case against the Department under section 760.10, and that he would not be able to prove at hearing that he was ever an employee of the Department, or that the failure to issue a Temporary Certificate to Mr. Jones was anything more than the Department’s following the requirements of its own rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Education did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dan Saunders Florida Department of Education Turlington Building, Room 101 325 West Gaines Street Tallahassee, Florida 32399 Ronald David Jones 1821 McKelvy Street Quincy, Florida 32351 Paula Harrigan, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32399-0400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
