The Issue Whether Broward County committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should Petitioner be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Community Services Department. The Libraries Division is administratively located within the Community Services Department. The Libraries Division operates a main library, five regional libraries, 36 branch libraries, and various reading centers. There are approximately 900 employees in the Libraries Division, about 200 more than there were in 2000. Librarian IV is a "high level administrative position" in the Libraries Division. The position description for Librarian IV (which has been in effect at all times material to the instant case) reads as follows: Nature of Work This is professional work at the administrative level of the library system. Work involves responsibility for assisting administrative superiors and coordinating assigned major units of the library system. Work involves assisting in interpreting and implementing all library policies, assisting in staffing and supervising assigned major units, and assisting in coordinating support services within the library system and with other agencies. Duties are performed with considerable independence and initiative within the framework of established policies and procedures. Work is subject to review and evaluation through periodic conferences, attainment of desired management objectives, and conformity with established policies and procedures. Distinguishing Characteristics This class is distinguished from Librarian III by the additional administrative responsibilities. Illustrative Tasks Assists administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assists in coordinating library system supportive services. Assists subordinate librarians in planning, coordinating, and organizing specific functional, programmatic, and physical aspects of library services and facilities. Assists in interpreting and implementing all library policies. Serves as assistant library staff officer for contacts and communications services within the county library system and the community at large. Conducts assigned library research and procedural studies; prepares reports relative to recommended solutions or courses of action. Cooperates with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. Knowledge, Abilities and Skills Considerable knowledge of professional library principles, practices, and techniques. Considerable knowledge of the current literature, trends, and developments in the field of library science and administration appropriate to the areas of specialization. Considerable knowledge of general community needs and interests in relation to library services in the areas of specialization. Considerable knowledge of the principles of supervision, organization, and administration. Considerable knowledge of research techniques and the sources and availability of current information. Ability to analyze facts and exercise sound judgment in decision making. Ability to plan, direct, and coordinate the work of subordinates. Ability to express ideas effectively, both orally and in writing. Ability to serve the public and fellow employees with honesty and integrity in full accord with the letter and spirit of Broward County's Ethics and Conflict of Interest policies. Ability to establish and maintain effective working relationships with the general public, co-workers, elected and appointed officials and members of diverse cultural and linguistic backgrounds regardless of race, religion, age, sex, disability or political affiliation. Desirable Experience and Training A Master's Degree in library science from a college or university accredited by the American Library Association; considerable experience of a supervisory nature in the operation of a library system, including some experience in administrative aspects of the work; or any equivalent combination of training and experience. In or about the fall of 1999, the County issued a job announcement for a Librarian IV position (Librarian IV Job Announcement), which read, in part, as follows: CIVIL SERVICE OPPORTUNITY OPEN-COMPETITIVE Librarian IV Salary Range- $38,552-$57,168 per year DESCRIPTION OF DUTIES: This is professional work at the administrative level of the library system. Work involves assisting administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assisting in coordinating library system supportive services; and assisting subordinate librarians in planning, coordinating and organizing specific functional, programmatic, and physical aspects of library services and facilities. Employees in this class assist in interpreting and implementing all library policies; serve as assistant library staff officer for contacts and communication services within the county library system and the community at large; conduct assigned library research and procedural studies; and prepare reports relative to recommended solutions or courses of action. Work also involves cooperating with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. QUALIFICATION REQUIREMENTS: Master's Degree in Library Science from a college or university accredited by the American Library Association and five (5) years experience in a supervisory capacity in the operation of a library system or a major library, which must have included six (6) months experience in administrative aspects of the work. BASIS OF RATING: NO WRITTEN TEST IS REQUIRED The selection procedure shall consist of two parts. Part I will be an unassembled rating consisting of an evaluation of experience, training and education shown on the application, plus any corroborative or supplementary information which may be obtained. Part II will be an oral panel interview designed to evaluate each applicant's knowledge in this field of work. Applicants must attain a passing score on both parts of the examination to be certified. In arriving at a final numeric score which will determine the order of the eligible list for the position the following values will be applied. Unassembled Rating- 50% Oral Panel Interview- 50% * * * EXAMINATION, NOTICE OF RATING AND TERM OF ELIGIBILITY: Candidates who complete the application and exam process are sent a Notice of Rating indicating if they are qualified for the position. Status of the eligible list established from this announcement is for one year beginning with the issue date of the Notice of Rating. . . . * * * STARTING PAY: Starting salary is normally the minimum of the salary range. * * * SPECIAL ACCOMMODATION AND COMMUNICATION NEEDS: Broward County is pleased to provide necessary reasonable accommodations in the testing process for disabled applicants. It is the responsibility of applicants requesting reasonable accommodation to submit requests in writing to the Applications Center staff at the time of submission of the application. . . . * * * NOTE: Upon completion of the rating portion of the examination, only candidates who are considered most qualified will be invited to participate in an oral panel interview. The remaining qualified applicants will stay on record and may be invited in for an oral panel interview at a later time. As necessary, the list established under this announcement may be used to selectively certify on a promotional basis Classified County Merit System Regular Employees. The Librarian IV Job Announcement was widely advertised. Petitioner is a highly experienced and accomplished librarian having both a masters degree and doctorate in library science. He met the "qualification requirements" set forth in the Librarian IV Job Announcement. After seeing the Librarian IV job announcement, Petitioner submitted an application for the position. Documents he attached to the application revealed that his date of birth was June 20, 1932 (although the application form that he filled out did not ask for such information). Petitioner has various health problems, but he did not request any special "accommodation in the testing process." (Petitioner has had "lens implants in [his] eyes [since] 1999," but he still needs to use a magnifying glass to read. In addition to having poor eyesight, he has been diagnosed with Charcot's foot (a foot deformity) and autonomic neuropathy (which "causes [him] to get dizzy when [he] get[s] up or climb[s] stairs or if [he] walk[s] too far or tr[ies] to get out of bed")). The United States Department of Veterans Affairs has determined that Petitioner has a 100 percent service-connected disability. Petitioner was one of 26 applicants who responded to the Librarian IV Job Announcement. All 26 applications received by the County were reviewed by a panel of three County employees. The panel consisted of two "subject matter experts" and one human resources person. Susan Stokes2 and Miriam Hershenson were the two "subject matter experts" on the panel. They were both Librarian V's. The remaining panel member was Cynthia Munn, a Human Resource Analyst II. Petitioner was one of 17 applicants to be selected, based upon the panel's evaluation of the application materials submitted, for an oral interview before the panel. Fifteen of the 17 selected applicants, including Petitioner, appeared for such an "oral panel interview." Each applicant was interviewed separately by the panel. "[T]he interviews [were] all conducted in the same manner." At the outset of each interview, the applicant was advised that the interview would last 25 to 30 minutes and that the "time factor" should be "ke[pt] in mind" in answering the panel's questions. It was emphasized that answers should be "clear and concise." The interview questions were "formulated ahead of time" by the panel's "subject matter experts," Ms. Stokes and Ms. Hershenson. A total of ten questions were used during the interview process. The questions were asked in the same sequence during each interview "in an effort to make it an even playing field." Following the interview, each panel member, without discussing the matter with the other two members of the panel, independently rated the applicant's interview performance. Petitioner was interviewed on or about January 28, 2000. Like the other 14 interviews, Petitioner's interview was "strictly an oral [one]." Contrary to the assertion made in Petitioner's employment discrimination charge, he did not use a magnifying glass during the interview. Indeed, there was no need for him to do so since there was no reading (or writing, for that matter) involved as part of the interview. Petitioner did not physically stumble, nor was he unsteady on his feet at any time during the interview. Petitioner performed poorly during his interview. His answers were rambling and, at times, non- responsive. The panel's efforts to "redirect and refocus him" were unavailing. He was so long-winded that he was only able to answer five questions in the time allotted for the interview (which was the same amount of time the other interviewees were given). Ms. Munn gave Petitioner failing scores of "F" in "communicative skills" and "D" in "job knowledge." Petitioner also received a failing score (of "C") in "communicative skills" from Ms. Hershenson. Neither Petitioner's age, nor his poor eyesight and other health problems, were factors in either Ms. Munn's or Ms. Hershenson's scoring of Petitioner's interview performance. The scores that they gave him were based solely on their good faith evaluation of how Petitioner performed during his interview. Petitioner was not extended an offer by the County to fill a Librarian IV position. The County hired (as Librarian IV's) four of the 15 applicants who were interviewed by the "oral interview panel." One of these new hires had a hearing impairment, to compensate for which she used hearing aids and lip read. According to their applications, all four of the applicants who were hired received their undergraduates degrees at least seven years after Petitioner received his undergraduate degree,3 and the three that provided the date of their high school graduation on their applications graduated high school at least 16 years after the date (1949) Petitioner's application indicates he received his high school diploma. There has been no persuasive showing made that the County's decision not to offer Petitioner employment was motivated by anything other than legitimate business considerations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding the County not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of July, 2003.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Petitioners are actively involved in numerous litigated matters before both state agencies and the courts. As such, they frequently use the law library at Union Correctional Institution. On or about May 17, 1983, the Secretary of the Department of Corrections issued a revision to Policy and Procedures Directive 4.10.51, which had originally been issued on June 21, 1979. This document, which has not been formally adopted as a "rule," purports to be issued pursuant to the authority contained in Section 945.21, Florida Statutes, and Rule 33-3.05, Florida Administrative Code. This directive applies statewide to the maintenance and operation of law libraries located within the facilities operated by the Department of Corrections. The directive establishes the location of "major" and "minor" law libraries in various correctional facilities. In addition, it defines certain terms and lists the types of legal materials to be maintained in "major" and "minor" libraries. The document establishes duties and responsibilities of the superintendent of each correctional facility maintaining a law library, as well as establishing the duties of the law librarian, inmate law clerks, inmate typists, the coordinator of law libraries, and inmates utilizing the facilities. The directive specifies the types of equipment to be maintained in the facilities and establishes guidelines concerning duplication of library materials by inmates. The directive further establishes the permissible scope of activities by law clerks in assisting inmates with legal research, and further reestablishes control on the use of telephone communications by inmates in connection with pending legal matters. Finally, the directive establishes a Law Library Advisory Council, provides for composition of the membership of that council, and empowers the council to make recommendations to the Secretary of the Department of Corrections concerning library services. On May 4, 1983, Union Correctional Institution, without formal rulemaking proceedings, issued the following Interoffice Memorandum addressed to the Main Housing Unit Staff and Inmates, concerning the law library at Union Correctional Institution: Effective inmediately, all Main Housing Unit Inmates wishing to use the Law Library, will obtain a Pass (Call-out) from their Floor Officer. The Floor Officermay let three (3) Inmates off his floor, go to the Law Library, no more. As these Inmates return, other Inmates may obtain a Pass to the Law Library. The Inmates will be limited to more than a two (2) hour stay in the Law Library, on each Pass. This should give everyone reasonable access to the Law Library. At 4:00 P.M., Officers will cease writing Passes to the Law Library Inmates wishing to use the Law Library after 4:00 P.M., must place their names on a list prepared at the Main Housing Unit Office. At 6:00 P.M., these inmates will be escorted to the Law Library by an Officer. At approximately 8:00 P.M., or when the Law Library closes, the Inmates will he escorted back to the Main Housing Unit by an Officer. The only exception to the above procedures, will be inmates who provide evidence of a deadline on their case or other legal materials. Any Inmate who checks out to the Law Library and is found in another area of the Institution, will be subject to Disciplinary Action. These procedures also apply to weekends and Holidays. This Memorandum becomes Institutional Policy, and compliance is expected. At the time of final hearing in this cause, there were approximately 2,600 inmates located in Union Correctional Institution. The seating capacity of the UCI law library is approximate1y thirty inmates, and the library is often crowded.
The Issue The issue is whether respondent should be dismissed as an employee for the reasons given in the termination letter dated June 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Oliver Williams, was employed as a bus aide for petitioner, School Board of Alachua County (Board). As such, he is an educational support employee within the meaning of the law. In a charging document dated June 19, 1996, the Board alleged that respondent had violated the Board's "DrugFree Workplace" policy by "testing positive for an illegal substance" a second time. For this alleged misconduct, the Board proposed to terminate his employment. Effective July 17, 1996, respondent was suspended without pay pending the outcome of this proceeding. Respondent disputes these allegations and has initiated this proceeding to challenge his termination. In his position as a bus aide, respondent is required to undergo an annual physical, including a five-panel drug screen through urinalysis for amphetamines, cannabinoids, cocaine, PCP and opiates. The testing is required since the Board has adopted a policy/guideline of maintaining a drug-free workplace. The policy/guideline has been in effect since at least May 16, 1989, and all employees are on notice that controlled substances may not be used in the workplace. On June 14, 1995, respondent provided a urine speciman to Doctor’s Laboratory, Inc., a Gainesville, Florida firm which has contracted with the Board to provide drug screening for certain Board employees. That test revealed a positive reading for Cannabinoids-THC (marijuana), which violated a Board policy prohibiting the “use of a controlled substance” in the workplace. On June 26, 1995, respondent was invited to a conference to discuss the test results. At that conference, respondent executed a rehabilitation contract in which he agreed to undergo patient counseling and to refrain from using “all illegal mind- altering substances.” He also agreed to have “random urinalysis” for a period of one year following release from the rehabilitation clinic/counselor. The contract provided that if he violated the agreement, he would be subject to termination as a Board employee. On August 16, 1995, and March 4, 1996, respondent tested negative in follow-up drug tests. On June 10, 1996, however, respondent again tested positive for Cannabinoids-THC. The validity and accuracy of the latter test has not been challenged. At a pre-termination conference held on June 18, 1996, respondent was asked what would cause his test to be positive. He responded that a fourteen year old niece who lived in his home regularly smoked marijuana with her friends and the passive smoke may have caused the positive reading. Through expert testimony of Dr. Goldberger, however, this theory was discredited. Because respondent’s conduct violates Board policy and the agreement which he signed, he should be terminated. Termination of employment is consistent with actions taken by the Board in the cases of other employees who have tested positive a second time. It is likewise found to be appropriate in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Alachua County enter a final order finding respondent guilty of violating Board policy regarding the use of drugs in the workplace and that he be terminated as a Board employee.DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1997. COPIES FURNISHED: Robert W. Hughes, Superintendent of Schools School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601-5498 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601-5498 Douglas W. Porter, Esquire Post Office Box 2655 Gainesville, Florida 32602
Findings Of Fact On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the 35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age. At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of 133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.
Recommendation Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
The Issue At issue is whether Petitioner St. Lucie County School Board (School Board or Petitioner) should terminate the employment of Respondent Judith Lee Heuter (Respondent or Heuter) following her second conviction for Driving Under the Influence (DUI).
Findings Of Fact Heuter has served as a teacher in the St. Lucie County school system for over 13 years. At all times material to this case, Heuter is party to a professional services contract with the School Board. Heuter's personal and professional reputations were unblemished until November 12, 1999, when she was arrested for DUI. By letter dated December 14, 1999, Respondent was notified by the School Board Personnel Director, Susan Ranew (Ranew), that she was to meet with Ranew on January 11, 2000, regarding the arrest. The meeting took place as scheduled. Ranew gave Heuter a letter signed by Assistant Superintendent for Human Resources Russell Anderson. The letter stated, in pertinent part: . . . [Y]our recent arrest could be a violation of the Florida Code of Ethics for Public Officers and Employees and the General Personnel Policies of the St. Lucie County School Board Policies section 3.56. State Board of Education Administrative Rule 6B-1.001 states at subsection (3) that the educator is [sic] “aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. . . . . . . [Y]ou are directed to refrain from this type of behavior in the future. Your failure to follow this directive will result in more severe disciplinary action. . . . The letter further advised Heuter that she was to be recommended for a two-day suspension, a disciplinary action which she did not contest. In due course, the suspension was formally imposed and was served by Heuter. In addition, the 1999 arrest resulted in an investigation by the state's Education Practices Committee (EPC). On September 7, 2001, the EPC issued a Final Order, which included a letter of reprimand and three years' probation. The terms of the probation included a provision that Heuter refrain from alcohol consumption and engage in substance abuse counseling. Legal proceedings relating to the 1999 DUI concluded on February 14, 2000, when Heuter plead no contest to the charge in St. Lucie County Court. As a first time DUI offender, Heuter was directed to alcohol abuse treatment. Thus, at the time the EPC entered its Final Order requiring treatment, Heuter was already in treatment. Although cooperative with treatment, Heuter was not persuaded that she suffered from alcoholism, a chronic disease requiring lifelong treatment. Such denial is a classic symptom of alcoholism. Heuter was arrested a second time for DUI on June 17, 2003. This event proved the catalyst for her acknowledgment that she was an alcoholic and would, without treatment, remain a danger to herself and others. Heuter promptly reported the arrest to her principal at the time, Diane Guffey (Guffey), to Jane Summa (Summa), who was slated to take over as principal at Heuter's assigned school for the 2003-2004 school year, and to personnel director Ranew. Heuter also returned to alcohol abuse counseling with appropriately credentialed professionals, and an understanding she had previously lacked concerning the seriousness of her illness. Heuter plead no contest to the second DUI and was convicted of the criminal charge on December 17, 2003. She was still on EPC probation at the time of the second offense, and an investigation in that forum is pending. More than one month elapsed between Heuter’s no contest plea and the time she was informed of the Superintendent's intent to recommend termination. Petitioner contends that Heuter knew or should have known from the time of the second arrest that a conviction would automatically result in her termination. In support of this contention, Petitioner asserts that Heuter was told by Ranew at their January 11, 2000, meeting of an "unwritten policy" which required that she be terminated upon conviction. The "unwritten policy" upon which Petitioner relies is not a School Board policy, but rather a district policy. The difference between School Board policy and district policy in St. Lucie County includes, but is not limited to, the fact that School Board policies are promulgated in writing following a period of deliberation which includes an opportunity for public comment. After careful consideration of all of the record evidence regarding the existence of an unwritten (district level) policy, the fact-finder is not persuaded that such policy existed. At most, one or more current and former district officials, neither of whom testified, held the view that any person who might commit a second alcohol or drug-related criminal offense should be terminated without regard to any mitigating factors which may exist. The parties agree that this is a case of first impression in St. Lucie County, in that the School Board has never undertaken to address the question of whether teachers or other employees should be terminated automatically upon a second DUI conviction. However, in other contexts relating to substance abuse, the School Board has crafted written policy which demonstrates careful attention to what people, places, and circumstances are intended to be brought within the scope of the policy, and what, if any, discretion the School Board reserves to deal with the offender on an individualized basis. For example, School Board Policy 3.59 addresses substance abuse in the workplace. This policy specifically provides: DRUG FREE WORKPLACE It is the intent of the School Board that work environments be free of the presence of illegal drugs and alcohol. Therefore, employees are prohibited from possessing, using, manufacturing, dispensing, distributing, or being under the influence of illegal drugs or alcohol while on duty. For the purposes of this policy, illegal drugs are those controlled substances as defined by federal or state law, or any counterfeit of such drugs or substances. For purposes of this policy, “workplace” means the site for the performance of work done in connection with employment. Workplace includes any school building or any school premises; and any vehicle used to transport students to and from school and school activities off school property during any school-sponsored or school-approved activity, event or function, such as a field trip or athletic event, where students are under the jurisdiction of the School District. As a condition of employment, each employee shall notify his or her supervisor of his or her conviction of any criminal drug statute for a violation occurring in the workplace no later than five (5) days after such conviction. An employee who violates the terms of this policy may be nonrenewed or his or her employment may be suspended or terminated. However, at the discretion of the School Board, such employee may be allowed to participate in and satisfactorily complete a drug abuse assistance or rehabilitation program approved by the School Board in lieu of a nonrenewal, suspension, or termination. Sanctions and discipline against employees, including nonrenewal, suspension, and termination, shall be recommended within thirty (30) days of receiving notice of an employee’s conviction. Within ten (10) days of receiving notice of an employee’s conviction in violation of this rule, the Superintendent shall notify the state and federal department of education. A drug-free awareness program is hereby established, and is to be implemented by the Superintendent, to inform employees of the dangers of drug abuse in the workplace, of the School Board’s policy of maintaining a drug-free workplace, of available drug counseling, rehabilitation, and assistance programs, and of the penalties to be imposed upon employees for drug abuse violations occurring in the workplace. As a part of this program, all employees and applicants for employment shall be given notice of the School Board’s policy regarding the maintenance of a drug- free workplace. . . . [A]t the discretion of the School Board, such employee may be allowed to participate in and satisfactorily complete a drug abuse assistance or rehabilitation program approved by the School Board in lieu of a non-renewal, suspension, or termination. At all times material to this case, Heuter is actively participating in treatment as prescribed by appropriately credentialed professionals involved in her care. The opportunity to do the work for which she was trained provides a powerful incentive for Heuter to continue to cooperate in her treatment. Heuter’s employer-based insurance provides partial coverage for her treatment. Her treating professionals regard her illness as medically similar to diabetes, heart disease, or other types of chronic and potentially life-threatening illnesses. So long as Heuter remains in compliance with her treatment program, she is well able to perform her job. There is no evidence that symptoms of Heuter's alcoholism ever surfaced in the classroom, or elsewhere on school grounds or on school time. Rather, at all times material to this case, Heuter enjoys the unqualified support and respect of experienced school principals she has served for and with over the course of her career. On March 23, 2004, following the decision to terminate Hueter’s employment, Jane Summa (Summa), who was to be the principal at Heuter's assigned school the following academic year, prepared Heuter's performance review for the current year. She wrote: It is with great pleasure that an EXCEPTIONAL OVERALL PERFORMANCE APPRAISAL RATING be granted to this highly effective teacher! Yet it comes as no surprise due to the fact that performance consistently exceeds the requirements of this position. As a direct result, students are consistently afforded an opportunity to perform at the highest possible level. Add to this one who always works in a positive, effective manner with all stake holders and you have a staff person that I am very proud to say is a true WEATHERBEE MARINER. (Emphasis in original). Diane Guffey (Guffey), Respondent’s principal at the time of both DUI infractions, would welcome Heuter back to her teaching staff. In a letter dated April 22, 2004, Guffey wrote: Ms. Hueter is a teacher who has made a difference in the lives of many children. . . . Teaching and children are a passion for her and she gives the job her best. Although Ms. Hueter has made some mistakes of bad judgment in her personal life, I have never seen any adverse effect on her teaching. As an administrator, I sometimes have to work with marginal teachers. Mrs. Hueter is an example of a mentor teacher who can help other teachers become better. Mrs. Hueter is an excellent teacher whom I would be proud to work with at anytime in any school. Robert Dougherty (Dougherty) provided glowing testimony concerning Heuter's teaching of his two sons. According to Dougherty, Heuter had extracted success from his sons in situations where other teachers had tried and failed. His personal knowledge and focus is narrowly based upon his parent/teacher relationship with Heuter, and, like the testimony of Summa and Guffey, was considered only as it may bear upon the alleged violation of Rule 6B-1.001(2) and (3). No evidence was presented in support of Petitioner's request for back pay and benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Heuter, having committed the single act of driving under the influence on June 17, 2003, violated School Board Policy 3.56 (3) (b) (7) (19), (29) and (37); dismissing the remaining charges; that acknowledging the violations proved warrant the substantial discipline of suspension without pay from March 11, 2003, to and including the date of the entry of a Final Order; and denying the claim for back pay and benefits. DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2004. COPIES FURNISHED: Catherine J. Chamblee, Esquire Chamblee, Johnson & Haynes, P.A. The Barrister’s Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401 David Miklas, Esquire Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Fort Pierce, Florida 34947
The Issue The issues are whether Respondent (“the Alachua County Board of County Commissioners” or “Alachua County”) committed one or more unlawful employment practices and/or retaliated against Petitioner (“Kalisha Eagle”) after she reported allegations of disparate treatment to Alachua County’s Equal Employment Opportunity Office.
Findings Of Fact Findings Adduced from Testimony and Evidence Presented during the Final Hearing The Alachua County Board of County Commissioners has adopted a policy mandating that “[d]iscrimination against any person in recruitment, examination, appointment, training, promotion or any other employee action because of political opinions or affiliations or because of race, color, age, sex, religion, national origin, marital status, disability, sexual orientation, gender identify or expression is prohibited.” That same policy statement also prohibits “[r]etaliation against any person for bringing an allegation forward, filing a complaint or participating in an investigation of alleged unlawful discrimination.” Alachua County’s governmental offices are served by an Information Technology Department (“the IT Department”) which consists of five teams: the help desk, applications, security, telecommunications, and networking. The network team handles infrastructure or hardware- related requests that require someone to go into the field in order to resolve a problem. The network specialist position is an entry level position for the network team, and there is only one network specialist position in the IT Department. The network specialist’s duties include desktop support and assisting network analysts in projects and tasks involving server support and network infrastructure. Also, the network specialist is the “first responder” to any help desk calls that cannot be resolved within 30 minutes over the phone. In addition, the network specialist installs software and ensures that devices such as printers and scanners are operating properly. The network team also consists of network analysts who handle more complex tasks than the network specialist and perform high-level work on servers. There are five to seven network analysts in the IT Department. During the time period relevant to the instant case, Virgilio Vensamoye managed the network team. Much like the information technology field as a whole, Alachua County’s IT Department predominantly consists of males. Of the 44 employees in the IT Department, approximately 34 are males and 10 are females. There are no females currently working on the network team. The IT Department hired Ms. Eagle (an African-American female) on August 4, 2008, to work on the help desk as a support technician. Ms. Eagle had a substantial amount of experience with and/or knowledge of information technology prior to beginning her employment with Alachua County. For instance, she earned a certificate in PC Support Services from Santa Fe Community College in 2001 and an associate of science degree in computer information systems analysis from Santa Fe Community College in 2002. Ms. Eagle has also earned several certifications related to computer science. Ms. Eagle’s performance evaluations and the testimony given at the final hearing indicate that she was performing well at the help desk. Following an interview,1/ during which she outperformed two other internal candidates, Ms. Eagle was promoted to the network specialist position on February 1, 2010. The network specialist position paid Ms. Eagle $22.33 an hour and was a 59-percent increase over her previous compensation rate. In the two years following her promotion, Ms. Eagle continued to perform well. For example, Mr. Vensamoye wrote a performance evaluation covering the period between October 1, 2010, and September 30, 2011, stating the following: “Kalisha has an exceptional attitude for helping us to resolve any problem we may have. She has taken over the tasks to assist the help desk as a first responder to help desk calls and ISR’s. She is always willing to help at a moment’s notice like she did when the Guardian ad Litem moved to their new offices.” Ms. Eagle made it known to several of her co-workers that she was looking to be challenged through her work and to use those challenges to grow as an IT professional. That desire was also set forth in her performance evaluations. In the performance evaluation mentioned above, Ms. Eagle wrote that, “I want to learn and have more participation during new server installations, setup and administration of Active Directory.” When their work schedules allow, IT Department employees have opportunities to work with more experienced co- workers and learn through on-the-job training. The testimony presented at the final hearing strongly suggests that network analysts within the IT Department are willing to assist those with less knowledge to improve their skills through on-the-job- training. In October of 2011, David Velez (a network analyst) left the IT Department. While his position was vacant, Mr. Vensamoye assigned some of Mr. Velez’s network analyst duties to Ms. Eagle. That decision was set forth in a November 7, 2011, e-mail stating that Ms. Eagle “will be taking over Animal Services and Community Services but during this transition, please keep Kenny and me informed of any help desk calls assigned to Nikki2/ for these two depts. I want her to have a successful take over in responsibilities.” Ms. Eagle testified during the final hearing that the aforementioned e-mail led her to believe that she would be hired to fill one of the vacant network analyst positions. That belief may have been reinforced by a November 28, 2011, e-mail from Mr. Vensamoye which described special circumstances under which the network analysts (who are salaried employees) could be paid for working an amount of hours beyond what is considered usual and customary. Mr. Vensamoye began his November 28, 2011, e-mail by stating the following: “To all, (Except Nikki because this does not apply to you at least not yet but you need to know too).” Ms. Eagle also believed that a promotion to network analyst was imminent because of her understanding that two people who previously held the network specialist position (Chris Johnson and Ian Van Kirk) had become network analysts approximately 18 months after they were hired as the network specialist. A committee interviewed Ms. Eagle for the network analyst positions, but her inability to answer certain questions demonstrated that she was not ready to assume that role. The IT Department ultimately hired two external applicants to fill the vacant positions. Mr. Vensamoye testified that the successful candidates had prior experience as network analysts and gave good interviews. In addition, one of the applicants had a veteran’s preference. Ms. Eagle was very upset that she was not hired to fill one of the vacancies and felt that the questions asked during her interview were unfair. There was no testimony or documentary evidence indicating whether any other network analyst positions came open during Ms. Eagle’s tenure in the IT Department. Mr. Vensamoye testified that vacancies at the network analyst level are infrequent. Ms. Eagle became even more upset when one or more of her co-workers asked for the equipment she had been using to handle the network analyst duties that Mr. Vensamoye had assigned to her via the November 7, 2011, e-mail. Ms. Eagle asserts that no one told her that she would no longer be handling network analyst duties once the vacant positions were filled. Because of the unsuccessful interview and the equipment issue mentioned above, Ms. Eagle visited Alachua County’s Equal Employment Opportunity Office (“EEO Office”) on January 12, 2012. Up to this point, Ms. Eagle claims that she was receiving enough opportunities to acquire the skills necessary to become a network analyst. Ms. Eagle did not file a formal complaint on January 12, 2012, but she did meet with an intake specialist within the EEO Office. The intake specialist made the following entries in the EEO Office’s computer system describing Ms. Eagle’s allegations: [Ms. Eagle] is upset that she is being unfairly treated. She says she is being passed over for certain jobs & projects that could lead to on the job training & experience & promotions. [Ms. Eagle] says her supr. [sic] Ken H., takes her equip. [sic] which impairs her ability to perform tasks and gives it to news emps. [sic]. [Ms. Eagle] says she interviewed for a position w/i [sic] her area and the position was given to two newer ext. [sic] emps. [sic]. [Ms. Eagle] says Ken said to her that she is not given certain projects becuz [sic] they require the tech to “get under desks” or work after hours/weekends becuz [sic] she is a single parent. [Ms. Eagle] says she never suggested that daycare was a problem and it prevents her from recd [sic] overtime. [Ms. Eagle] spoke with mgr. [sic] Vensamoye who says he will address the issue. Soon thereafter, Jacqueline Chung (the lead person in the EEO Office) learned of Ms. Eagle’s allegations and spoke to her. However, Ms. Eagle stated that she did not want to file a formal complaint. Instead, her visit to the EEO Office was merely a way for her to explore her options. Ms. Chung discussed Ms. Eagle’s concerns with the IT Department’s management. Because of her visit to the EEO Office, Ms. Eagle asserts that the IT Department began to retaliate against her by not assigning her to work on high-level projects. According to Ms. Eagle, her work for the remainder of 2012 was limited to desktop support and only one “project.” On or about Christmas of 2012, Ms. Eagle was seriously injured in a car accident and did not return to work until March 10, 2013. According to Mr. Vensamoye, Ms. Eagle had not completely recovered from the car accident upon her return to work. As a result, Mr. Vensamoye assigned Ms. Eagle to “light duty” tasks which would not require her to lift heavy objects or walk long distances. At the beginning of 2013, Ms. Eagle began to feel isolated at work. She alleges that her work orders decreased and that she was only allowed to observe others doing high-level work. Ms. Eagle would have preferred that she be allowed to do that work with someone watching and providing feedback. Ms. Eagle further alleges that she was slowly being removed from field work. Another issue arose when Ms. Eagle was allegedly asked to “groom” William Martinez. This was supposedly communicated to her via an e-mail dated May 14, 2013, in which Kenny Shore (the person who usually assigned work to Ms. Eagle and others in the IT Department) asked Ms. Eagle to rebuild a computer from scratch. Along with other instructions, Mr. Shore stated that “we want Billy Martinez to observe/assist with this project. Use him as much as you can to assist you with things like updates, backing up the data, whatever you think. Want to get Billy up to date with this kind of a project.” The IT Department was not providing any preferential treatment to Mr. Martinez. Mr. Martinez began working for the IT Department 19 years ago as a support technician on the help desk. At some point after he was unsuccessful in obtaining the network specialist position that was ultimately offered to Ms. Eagle, Mr. Martinez concluded that he would have to take matters into his own hands in order to earn a promotion. Mr. Martinez’s first step in earning a promotion involved handling help desk calls that could not be handled over the phone. As mentioned above, the help desk personnel typically forwarded such calls to the network team, and a member of the network team then went out into the field in order to resolve the problem. However, rather than forwarding such calls, Mr. Martinez handled them himself, and he was doing so based on his own initiative. Members of the network team came to respect Mr. Martinez’s abilities. They allowed Mr. Martinez to watch them perform high-level network tasks, and they eventually allowed him to perform such tasks. He ultimately earned a promotion to senior support technician. As a result of the issues described above, Ms. Eagle asserts that she visited Mr. Vensamoye’s office on September 30, 2013, and was ready to immediately tender her resignation. According to Ms. Eagle, Mr. Vensamoye responded to her concerns by offering her a part-time schedule. Ms. Eagle signed and submitted a letter to Mr. Vensamoye on September 30, 2013, stating the following: Due to extenuating circumstances dealing with the daily care of my children, I am formally requesting a reduction of my work schedule in order to accommodate the needs of my family. Upon approval, I am requesting to change my schedule to 8:30am- 12:30pm, Monday through Friday effective at the earliest convenience. I understand my salary will be adjusted accordingly to this reduced working schedule. I certainly appreciate all the assistance you may provide to this request. A memorandum dated October 1, 2013, and signed by Mr. Vensamoye and Ms. Eagle indicates that her request to work part-time was approved, and she began working 20 hours a week on October 7, 2013. The IT Department prides itself on resolving its clients’ problems as quickly as possible and providing prompt customer service. Witnesses from the IT Department persuasively testified that it is efficient to have a single person or group of persons working continuously to resolve a problem. Under such circumstances, the problem is typically solved much faster than it would be if assigned to someone working a part-time schedule. Therefore, the IT Department did not assign any complex tasks to Ms. Eagle while she was on a part-time schedule. Her tasks were limited to those that could be handled relatively quickly. At some point in 2014, Mr. Vensamoye became concerned with certain aspects of Ms. Eagle’s behavior at work. Accordingly, he met with her on June 9, 2014, and issued the following “memorandum of understanding” which stated: As a follow up to our conversation today, we have agreed to take the following actions: Your schedule will remain 8:30 to 12:30 Monday to Friday as we agreed on October 7th, 2013. You are expected to be on time for assignments and meetings. Do not leave team meetings without express permission. Every Monday morning you will meet with Kenny Shore to review the list of tasks assigned to you and to plan your assignments for the week. On a daily basis, Victor Paul will follow up the progress of tasks assigned to you and he may make any necessary changes to your work load as priorities change. You must communicate immediately with Victor or me if you have any type of concerns that may affect your job performance. Limit the personal use of the phone calls during your assigned work schedule. Please be sure your cell phone bill is in good standing to avoid disruptions in service. The County will not be able to reimburse you for cell phone services for the month disruption of services occurs. Do not spend extended periods of time in consultation with Orin Yaw during your work day. You are disrupting his tasks and yours. If you need to consult on any technical issues, please refer to a member of the network team. After receiving the memorandum of understanding, Ms. Eagle returned to the EEO Office on June 17, 2014, to complain about the memorandum. Ms. Eagle also reported that nothing had changed since her last visit to the EEO Office in January of 2012. Ms. Eagle believed that the counseling memorandum was further retaliation for her initial visit to the EEO office. Ms. Eagle also thought that the IT Department was beginning to retaliate against her through other means. For example, Ms. Eagle was supposed to begin taking the lead on certain assignments in June or July of 2014. However, she had to complete a background check beforehand. Ms. Eagle saw no need for a background check when she had spent the last six years working for Alachua County. Ms. Eagle further claims that the IT Department retaliated against her by closely monitoring her time and assigning her to work with interns. Ms. Chung met again with Ms. Eagle for about two hours on July 21, 2014. In a July 22, 2014, e-mail, Ms. Chung summarized Ms. Eagle’s concerns as follows: Process for work order assignments (not being given work and hearing that others are getting assignments) Departmental assignments (not given certain depts [sic] even after being trained on their system) Computer builds (part of your position responsibilities, not given to interns) Being told to assist interns and others on assignments instead of being given the lead. The perception that others are being groomed/their futures considered, but you are not able to work on a full-time basis. On July 23, 2014, Ms. Chung sent an e-mail to Ms. Eagle notifying her that she was going to meet with Mr. Vensamoye that day about the concerns listed above. Ms. Chung also stated that she intended to schedule a follow-up meeting with herself, Ms. Eagle, and the management of the IT Department because it would “be helpful to have all parties at the table as we discuss a game plan to move forward.” Ms. Eagle, Ms. Chung, the County’s Human Resources Department, and the IT Department met in September of 2014, to address Ms. Eagle’s concerns. However, Ms. Eagle became frustrated with Ms. Chung and the Human Resources Department and essentially dismissed them from the meeting. Ms. Eagle made it known that she only wanted to deal with the IT Department from that point forward. Toward the end of 2014, management within the IT Department became concerned that Ms. Eagle’s position would be eliminated or that it would be permanently converted into a part-time position. Therefore, Ms. Eagle was asked to return to full-time status, and she did so on January 12, 2015. Upon her reinstatement to full-time status, Ms. Eagle’s assignments were no longer limited to issues that could be resolved in a short time frame. Ms. Eagle asserts that the past pattern of retaliation or disparate treatment continued after she returned to full-time status. According to Ms. Eagle, she only received 24 work orders for the entire year of 2015. Ms. Eagle resigned on October 2, 2015, and her resignation letter read as follows: Please accept this letter as my formal resignation from the Alachua County Information Service Department Network Specialist Position under the Network Team Division effective October 2, 2015. It has been a pleasure working with all of you the last 8 years and I wish everyone here the best in the years to come. I thank all of you once again for this opportunity and I give a special thanks to those who took the time to make this opportunity special for me. Specific Findings Regarding Ms. Eagle’s Allegations of Disparate Treatment and Retaliation In her filings with the Commission and during the course of the final hearing, Ms. Eagle made several allegations about how she was the victim of disparate treatment during her tenure with the IT Department. Furthermore, she alleges that the IT Department’s management retaliated against her when it learned that she had visited the EEO Office. The following findings specifically address each of those allegations. Ms. Eagle’s primary allegation is that the IT Department’s management did not assign her the type of work assignments that would further her professional development and prepare her for promotion to a network analyst position. In support of this allegation, Ms. Eagle asserted that Ian Van Kirk (who held the network specialist position prior to Ms. Eagle) had the opportunity to take the lead on projects and to work on servers. However, Mr. Vensamoye testified Mr. Van Kirk was always under supervision. Also, while conceding that Mr. Van Kirk worked on servers during his tenure as a network specialist, Mr. Vensamoye testified that the IT Department was short-handed at the time. In addition, Mr. Vensamoye reiterated that Mr. Van Kirk never made any final decisions. Ms. Eagle also alleged that the IT Department hampered her professional development by not assigning her complex tasks and by not inviting her to participate in an adequate number of high-level projects. When she was invited to participate on such projects, her participation was allegedly limited to observation with no “hands-on” work. While not expressly saying so, Ms. Eagle clearly implies that observing others working on high-level projects did nothing to further her knowledge and professional development. First of all, Ms. Eagle’s own testimony indicated that she had been assisting network analysts prior to her unsuccessful interview for a network analyst position. According to Ms. Eagle, that work and her other work within the IT Department adequately prepared her to assume a network analyst’s duties. Moreover, there was testimony indicating that Ms. Eagle was assigned projects that were far more involved than the help desk calls typically handled by a network specialist. Those projects were opportunities for professional development. For example, Jim Bledsoe (a network analyst within the IT Department) testified about a project in which the IT Department enabled county commission meetings to be streamed over the internet. Mr. Bledsoe was the leader of that project and asked for Ms. Eagle to be assigned to it because she had expressed a desire to participate in a highly visible assignment. During the course of this project, Ms. Eagle assisted Mr. Bledsoe and was able to watch him build a server. Ms. Eagle also assisted Mr. Bledsoe in connecting computers in the Alachua County Transfer Station to the County’s main network via a radio frequency link. Mr. Bledsoe also testified that Ms. Eagle was the point-of-contact between the IT Department and the Guardian ad Litem office. While the Guardian ad Litem Office was a small department in comparison to others, Ms. Eagle was completely responsible for that office’s information technology needs. Ms. Eagle had an open invitation to participate in any projects that interested her. Mr. Vensamoye testified that employees within the IT Department are encouraged to confer with more experienced co-workers and gain knowledge by assisting those co-workers with certain tasks. Chris Johnson testified that when he was a support technician, network analysts were very receptive to allowing him to watch or assist with projects. Testimony during the final hearing indicated that Ms. Eagle’s desire to improve her skills dramatically decreased at some point after she became a network specialist. For example, Mr. Bledsoe testified that Ms. Eagle unexpectedly left the transfer station project before it was completed, and Mr. Johnson testified that Ms. Eagle was talking on her phone during the entire duration of the project. Mr. Johnson also testified that he stopped asking Ms. Eagle if she wanted to accompany him on projects because she no longer seemed to be interested and was difficult to locate. Finally, Victor Paul (Ms. Eagle’s direct supervisor) testified that Ms. Eagle’s interest in learning new skills disappeared during her final two-and-a-half years in the IT Department. Also, the IT Department understandably avoided assigning Ms. Eagle complex assignments when she was working a part-time schedule. As noted above, the IT Department prides itself on providing a high level of customer service and wanted to avoid situations in which a client’s problem went unresolved simply because an IT Department employee could only devote a limited amount of time to the problem. Ms. Eagle also asserted that her professional development was hampered by the fact that she was not assigned to cover on-call support. Mr. Vensamoye persuasively testified that the IT Department was under strict budgetary constraints at the time in question. Because Ms. Eagle was an hourly employee who would have to be paid overtime, it was more economical for the IT Department to assign salaried employees to on-call duty. Ms. Eagle also alleges that Mr. Martinez was “groomed” for advancement and that a great deal of her network specialist work was improperly diverted away from her and to Mr. Martinez. This appears to be the primary basis for her repeated assertions that she was getting “no work.” Given that Mr. Martinez had worked in the IT Department for 17 years prior to earning his promotion to senior support technician, one can hardly say that the IT Department’s management had singled him out and was “grooming” him for promotion. Instead, the testimony indicates that Mr. Martinez made a conscious decision to volunteer for extra work and earn his promotion. In fact, Mr. Shore testified during the final hearing that Mr. Martinez “worked his ass off and he was there every day” during the time period at issue. In order to reach his goal of earning a promotion, Mr. Martinez was handling help desk calls that would normally be assigned to a network specialist such as Ms. Eagle. Therefore, he appears to have been filling a void that resulted from Ms. Eagle’s downtime following her accident and her subsequent part-time status. Furthermore, while Mr. Shore vigorously disputed any assertion that Ms. Eagle was not getting her fair share of work assignments, he testified that Ms. Eagle was difficult to locate in 2014 and 2015. Therefore, it is certainly understandable that certain assignments were shifted to Mr. Martinez when Ms. Eagle could not be located. Ms. Eagle also alleges that the IT Department’s management retaliated against her by subjecting her to increased monitoring, requiring her to obtain a security clearance, and by issuing the memorandum of understanding to her. Mr. Vensamoye and Mr. Paul testified that the same amount of monitoring was being applied to all of the IT Department’s employees. Ms. Eagle was not being singled out, and there was no evidence to the contrary. With regard to the security clearance, Victor Paul (Ms. Eagle’s direct supervisor) testified that obtaining such a clearance is something that must be done periodically. Therefore, asking her to do so was not an attempt at retaliation. Mr. Vensamoye testified that Ms. Eagle was taking an inordinate amount of time to complete assignments in the few months preceding the memorandum of understanding’s issuance. Also, it became difficult to find her during working hours and, when she was able to be located, she was often in the break room or talking on her telephone. Accordingly, the memorandum of understanding was an effort to address those issues rather than disciplinary action. Finally, Ms. Eagle alleges that she was subjected to disparate treatment when certain equipment was taken from her possession after the IT Department hired two network analysts in 2012. The equipment in question was related to the network analyst duties that Ms. Eagle was covering after the incumbent left the IT Department. Ms. Eagle was very upset when she was not hired for one of the network analyst positions, and the retrieval of the equipment appears to have been “salt in the wound.” However, after the two network analyst positions were filled, it was reasonable to expect that the persons hired would need that equipment. As discussed below in the Conclusions on Law section, Ms. Eagle was required to prove her allegations of disparate treatment and retaliation by a preponderance of the evidence. The greater weight of the evidence demonstrates that there was no disparate treatment or retaliation. Specifically, the greater weight of the evidence does not establish that Alachua County took any action which led to a serious and material change in the terms of Ms. Eagle’s employment.
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 Ms. Eagle’s Petition for Relief. DONE AND ENTERED this 25th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2016.
The Issue Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her. The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.
Findings Of Fact Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions. Ms. Jones received her first personnel rating on March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to her chronic tardiness. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and she refused a transfer to a less physically-demanding position at the circulation desk. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines. Ms. Jones alleged that the head of circulation, Wendi Jo Bost, harassed and belittled her on account of her race and physical condition. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia, except an inability to be out in the sun.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998. COPIES FURNISHED: Aundra Jones, pro se 510 Auburn Avenue Altamonte Springs, Florida 32714 Mary Wills, Esquire 255 South Orange Avenue Suite 801 Orlando, Florida 32801-3452 Susan K. McKenna, Esquire Garwood, McKenna, McKenna & Wolf, P.A. 31 North Garland Avenue Orlando, Florida 32801 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082
The Issue Whether the suspension of Petitioner was for good cause shown as indicated in the letter of suspension dated August 19, 1976.
Findings Of Fact Ralph L. Wilson was suspended for a three (3) day work period August 20, 1976 through August 24, 1976. The certified mail letter to Mr. Wilson stated, "This suspension is caused by your unauthorized absence for the period August 10 through August 13, 1976." Appellant Wilson is an Accountant at Florida A & M University working under the direct supervision of William Schnitt, Acting Budget Officer at Florida A & M University. Vinod K. Sharma Associate University Comptroller at Florida A & M University, is the supervisor of William Schmitt. James R. Barrett, Comptroller of Florida A & M University, is the supervisor of Vinod K. Sharma. Appellant Wilson requested a leave of absence from his position to attend a church conference to be held in Lake City, Florida, on August 10-13 1976. His immediate supervisor, Mr. Schmitt, orally refused the request but advised Mr. Wilson that the denial could be appealed to Mr. Vinod K. Sharma. Mr. Wilson appealed in writing the denial by Mr. Schmitt on August 4, 1976 to Mr. Sharma. Mr. Sharma, on August 4, 1976, sustained the denial of the request citing as the basis an August 1, 1976 memorandum to all fund accountants from J. R. Barrett, University Comptroller, asking all fund accountants not to request annual leave during the period from August 3, 1976 through September 7, 1976. The Appellant called in sick on August 9, 1976. He also called in sick on August 10, 1976. He did not call in to explain his absence on August 11, 12, and 13, 1976. Appellant Wilson presented a memo signed by W. H. Baker, M.D., as follows: "8-9-76 Mr. Ralph Wilson visited my office today because of illness." There was uncontroverted testimony that Appellant Wilson attended a church meeting on August 11, 12 and 13, 1976, in Lake City, Florida. Evidence was submitted that Appellant Wilson was an active member of the conference in Lake City who served, according to a portion of the program for the conference, as a member of the Board of Examiners at said conference. Appellant Wilson was transferred to the Comptroller's Office on July 10, 1976. His job description included the following statement by Mr. Barrett: "Your immediate supervisor will be Bill Schmitt, who at his discretion, may assign you additional duties." Appellant Wilson admitted that he was in Lake City, Florida on August 11, 12 and 13, 1976, and took an active part in a church conference in Lake City during that period. He admitted that he knowingly violated the personnel rules of being absent without proper authorization. The Appellant contends that he is discriminated against by his supervisors in that a statement from the doctor is required of other employees and that he is required to bring in certification on sickness anytime that he is sick for more than two (2) days. Appellant contends that his duties assigned are not nearly as much as the Respondent claims them to be, that he was given no credit for coming to work before 8 o'clock or while he stayed at work while his supervisors went on coffee break daily from around 8:15 to 9:00 A.M., that each time he was going to be more than fifteen (15) minutes late he did call in and report the same. Appellant further contends that the Respondent did not prove that he was not sick on the days claimed. He stated he was sick August 9-13, 1976. Appellant Wilson was notified by mail that he was suspended for three (3) days by the Agency Head, President B. L. Perry, Jr. Said suspension notice stated that the suspension was for being absent without authorization. He was without authorized leave.
Recommendation Inasmuch as the Appellant has been orally reprimanded and reprimanded by written notice, it is recommended that the three (3) day suspension without pay be sustained. DONE and ORDERED this 9th day of May, 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: Mr. Ralph L. Wilson Post Office Box 2392 Tallahassee, Florida 32304 Bishop Holifield, Esquire Legal Department Florida A & M University Tallahassee, Florida 32307 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
