Findings Of Fact Harold B. Spears was 68 years of age at the time his employment with Ewell Industries was terminated. Ewell Industries, Inc. (Ewell) operates concrete block manufacturing facilities located in Largo and DeFuniak Springs, Florida (DeFuniak). Spears was an employee of Pinellas Industries when the Largo facility was acquired by Ewell in 1982 and became an employee of Ewell at that time as manager of the block plant at Largo. In 1984 Spears was involved in an automobile accident which damaged the alignment of his muscles and bones, causing swelling and severe pain throughout his body. At times the swelling and pain became severe and Spears wanted to retire. Between 1984 and 1987 Spears frequently announced his intention to retire. On at least two occasions, Ewell hired people to be trained to assume Spears' job, and after they had been trained Spears withdrew his notice of an intent to retire. Finally, in December 1986, immediately prior to his scheduled retirement in January 1987, Spears condition was again improving and he wanted to reconsider retiring. John McGregor (McGregor), vice president of operations, told Spears that this time he should go through with his retirement. Spears retired from Ewell in January 1987. After Spears' retirement McGregor recommended him for a position at C.E. Parrish where Spears later worked part-time to supplement his social security income. During the early fall of 1987 when Ewell was in the process of purchasing Sikes Concrete Products the owner of Sikes called Ewell's president, William McCue, to inform him that Sikes' plant manager had quit and to ask if McCue had anyone he could send to run the plant. McCue advised Sikes he did not have anyone available but suggested Spears might be interested in part-time work. In October 1987, McGregor discussed with Spears the possible position at Sikes Concrete for a six to eight month period and told him of the potential purchase of Sikes by Ewell. Sikes negotiated a contract with Spears in which Spears was paid annualized salary of $42,000 to help rehabilitate the Sikes block plant at DeFuniak and to train a manager for the plant. In addition, Sikes agreed to pay for lawn and pool services on Spears' home in Seminole, for rental of a lot for Spears trailer at DeFuniak Springs and a mileage allowance for Spears to make a monthly return visit to Seminole to check on his permanent home. When Spears started work at the DeFuniak plant, Marty Carpenter was designated the acting manager of the plant and the individual Spears was intended to train. Spears clearly recognized his position as a consultant at the Sikes plant at DeFuniak. In November 1987, Ewell consummated the purchase of the Sikes plant at DeFuniak. On November 10, 1987, all of the employees at the DeFuniak plant were assembled and told of the transfer of ownership. The former Sikes employees were told that they would all continue in their present position and at the same pay they received from Sikes until subsequent changes may be deemed necessary. Spears received from Ewell the same pay and special benefits he received from Sikes. Because of Spears' former association with Ewell, McCue told Pamela Wells, Ewell's administrative manager, to allow Spears to participate in the company group insurance plan and to withhold income and social security taxes for Spears. To accomplish this, Ms. Wells had Spears sign the same form the permanent employees used to transfer from Sikes to Ewell. At this time Spears and Ewell management both understood that Spears continued to operate as a consultant to train Carpenter as plant manager. Subsequent to the takeover it became apparent that Carpenter would not work out as plant manager. Spears was scheduled to be terminated and leave around March 15, 1988, and when it became necessary to replace Carpenter, Spears was requested to stay on an additional month to help the new plant manager, Dennis Duncan, until he became familiar with the plant. During the second week in April, Lewis, the operations manager, discussed with Duncan, Spears' April 15 departure date. Duncan wanted to keep Spears on longer to help with the problems. On April 18, 1988, Lewis reported to Pitts, the general manager, Sikes Division of Ewell, that Spears was still on the job. Pitts then called Spears and told him that his (Spears) work was finished at the DeFuniak plant and to go home. Spears had learned from Duncan that Duncan was interviewing for another job on April 27, 1988 and might be leaving Ewell. Spears didn't think Pitts had the authority to fire him and he called McGregor to tell him Duncan was leaving. McGregor was out-of-town and Spears talked to McCue who told Spears he would have McGregor call. A few days later McGregor spoke with Spears and he also told Spears that Spears was no longer needed and his work at DeFuniak was finished. Several times during the six to eight months Spears worked at DeFuniak he complained about the weather, spoke of his wife's problems in the colder climate, and expressed a desire to return to Seminole. Prior to the hiring of Duncan as plant manager, no one in Ewell management was aware that Spears was, or might be, interested in the job as plant manager. Concrete block plant managers' compensation generally runs between $25,000 and $35,000 per year. When Spears retired as plant manager at the Largo plant, his annual compensation was approximately $35,000. Spears never told McCue or anyone else in Ewell management that he was interested in the DeFuniak plant manager's job if Duncan left. Spears remained in the DeFuniak area until May 7, at which time the company-paid rent on his trailer lot ran out. In early May, Duncan notified McGregor that he was resigning as plant manager. McCue, McGregor and Pitts discussed Duncan's replacement and the decision was made to promote Ron Zablow who was working at the Largo plant and who had acquired most of his knowledge about block plants from Spears. Zablow was promoted to plant manager at a salary of between $24,000 and $26,000 per year. Neither McCue, McGregor nor Pitts considered hiring Spears for the plant manager position at DeFuniak nor would they have hired him had they been aware he was interested in the job after Duncan left. There had already been two plant managers at DeFuniak in the last six months, Spears' on again-- off again position prior to his retirement in 1987 detracted from his attractiveness, and no one, including Spears, thought he would be interested in the plant manager's job at a salary less than he had received as a consultant, which was approximately twice the salary paid to Zablow. Ewell Industries has over 400 employees. Of those 400, .25% (one employee) is over 70, 4.3% are over 60, 8.3% are over 50, and 43.4% are over 40 years of age. During the calendar year 1988 the percentage of terminations in the foregoing categories with respect to the overall work force was: 2.1% for employees over 60, 10.9% for employee over 50, and 25.5% for employees over 40.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 12, 1989, at Tampa, Florida.
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S 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 17th day of June, 2019.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the regulation of the engineering profession in Florida and for the registration, (licensing), of professional engineers. Respondent, Culbreath Whitehead, Jr. was granted registration as a professional engineer, by examination, on August 26, 1957, and has held professional engineer registration (# PE-0004592) since that time. His registration at the time of hearing was current and due to expire on January 31, 1991. Respondent's registration previously expired on January 31, 1983, and was not renewed until August 24, 1987. During the intervening period, it was inactive due to his failure to renew it. Since some time in the 1960's, the licensure status of professional engineers, and most other regulated professionals, has been maintained on a computerized system operated by the Department. All professional engineer registrations expire and are due for renewal on January 31 of alternating years. When issued, a registration is valid for two years unless revoked, suspended, voluntarily relinquished or otherwise impaired. Upon the direction of the Board, each year, prior to January 31, the Department prints out a notice of time for renewal which is mailed to each registrant whose registration is due to expire in that cycle. These notices are mailed to the registrant's address on file with the Board. The notice of the requirement and procedure for renewal is found on the back of each license. The Department is obligated only to mail the notice to the registrant's last known address - not to insure it is received. Even if the registrant does not receive the notice to renew, it is his obligation to insure his registration is renewed timely. Under the Department's procedures, if a registrant does not respond to the notice to renew, a second notice is not automatically sent. Though the current law provides that a registration not renewed for four years is considered to have automatically expired, Respondent, and others who were registered before 1983, are still governed under the old law which provided for a ten year period of lapse before expiration. In either case, however, by statute the Department is required to notify the registrant of impending expiration one year prior to that happening. Respondent claims not to have received the initial notice of renewal which should have been sent to his address at the time, Rt. 8, Box 90, Sarasota, Florida, 33580. The Department presented no evidence to show that a notice was sent to Respondent at that address or at any other, relying on a presumption of regularity. It is found that the notice was mailed to the Respondent, but it is also found that he did not, for some reason, receive it. He admits that he did not renew his registration until some time in 1987 when he was advised of his lapsed status, by a colleague, in a conversation on another matter. As soon as he was advised of his status, he immediately called the Board's Tallahassee office, requested the proper forms for renewal, and, after a delay securing the required continuing education verification, submitted them to the Board. His registration was thereafter renewed without question on August 24, 1987, and has since remained current. Respondent claims that he completely overlooked the requirement for renewal and, without receipt of the notice, failed to do so. He will admit that if he did receive the notice, and he does not recall doing so, he probably set it aside without looking at it, and asserts his failure to renew was not intentional. No evidence was presented to the contrary or to give any reason for an intentional failure, and it is so found. Mr. Bishop, the head of a fifty man engineering firm in Sarasota, indicated that his registration, and that of all his employees, is taken care of and paid for by the firm. He notes that while he recognizes the need for registration, and would not intentionally overlook to do it, it is quite possible that were he a sole practitioner, he could easily overlook the renewal requirement. This is not really credible. Recognizing that biannual registration is a condition precedent to practice of the profession, it is found not likely that a registrant would continuously practice for a period of years without renewal. The fact remains, however, that during the period alleged, Respondent's registration had expired for lack of renewal and was not in effect. Respondent maintained listings in the Sarasota telephone book, as a consulting engineer and an electrical engineer, during the years effective June 1, 1985; July 5, 1986; and July 4, 1987. In addition, in July, 1986, at the request of an architect involved in the Redfish Cove project in Charlotte County, he prepared and set his signature and seal to preliminary drawings for the project which were filed with the Charlotte County building department as a predicate to permitting without fee. At some later date, however, when a dispute arose over his fee and continued participation in the project, he attempted to withdraw those plans. At about the same time, an official of the development first responsible for the project wrote a letter indicating that Respondent was no longer to be considered "engineer of record" for the project. Respondent claims he never was "engineer of record", does not know what that term means, and had no greater participation in the project than that described above. It is so found. An investigation into Respondent's practice was initiated by the Department shortly after Respondent attempted to withdraw the plans, and two Administrative Complaints were issued against him prior to that in issue here. Both were withdrawn, however, and there is no indication Respondent is now or has been subject to other disciplinary action previously as a result of his professional activities. He claims, however, that the investigation of this case and the subsequent departmental handling of it were replete with errors which indicate a lack of reliability as regards the Department's action here. It is found, however, that such errors as do exist, relating primarily to the spelling of his name and the accuracy of his registration number, are ministerial scrivener's errors only and bear no relation to the evidence regarding the status of his registration or his practice as a professional engineer as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be issued in this case issuing a reprimand to the Respondent, Culbreath Whitehead, Jr., and placing him on probation for one year and under such conditions as the Board may specify. RECOMMENDED this 28th day of February, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4280 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of fact submitted by the parties to this case. For the Petitioner: & 2. Accepted and Incorporated herein. & 4. Accepted and Incorporated herein. Accepted and Incorporated herein. & 7. Accepted and Incorporated herein. Accepted and Incorporated herein except for the last sentence which was not proven. Not a Finding of Fact. - 12. Accepted and Incorporated herein. 13. Accepted and Incorporated herein. For the Respondent: & 2. Accepted and Incorporated herein. Accepted and Incorporated herein. Accepted. Rejected. Accepted. Accepted and Incorporated herein. Accepted. There is no Proposed Finding Of Fact # 9. - 13. Accepted and Incorporated herein. Accepted. & 16. Accepted and Incorporated herein. Not a Finding of Fact but a restatement of testimony which is accepted. Not a Finding of Fact. Not a Finding of Fact but a restatement of testimony. Not a Finding of Fact but an argument on the admiss- ibility of evidence. Not a Finding of Fact but a restatement of testimony which is accepted. Not a Finding of Fact. Not a Finding of Fact but an argument on the law. Accepted. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Culbreath Whitehead, Jr. 6481 Prospect Rd. Sarasota, Florida 34243 Jack L. McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Carrie Flynn Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
Findings Of Fact Leo Willie Johnson commenced work as a custodian at Citizens Field on September 23, 1985, under inauspicious circumstances. For reasons not germane to this proceeding he had been discharged as a school bus driver and was reinstated by the Superintendent. As part of the reinstatement he was transferred from the Transportation Department to a custodial position. Since he didn't want a full-time position and the Citizen's Field assignment was part- time, he was assigned to that site. (tr-16, 127, Exhibit #R-2) Citizen's Field is a football stadium owned by the City of Gainesville and leased by the Alachua County School Board (SBAC). There are two concrete bleachers, an east side and a west side, accommodating a total of 6500 persons. The fall months are extremely busy with frequent football games and some use of the field by the City of Gainesville. (tr-16, 39, 70, 73) On Mr. Johnson's first day of work he was given a brief orientation to the job by his immediate supervisor, Dave Waters, who has been in charge of maintenance of Citizens Field for 26 years. He was also given a "pep" talk by Kirby Stewart, who is Mr. Waters' supervisor and the individual in charge of health education, drivers education and athletics for the SBAC. Mr. Stewart told Willie Johnson the work would be hard but rewarding, since parents, students and administrators are quick to acknowledge how great the field looks. (tr-16, 17, 69, 70) Mr. Johnson's assigned work day was from 8:00 a.m. until 1:00 p.m. Monday through Friday, with a 10-minute break at 10:00 a.m. His duties included general cleaning and field maintenance: using a blower to remove papers and trash from the bleachers, sweeping the restrooms and walks, removing paper from the ground, raking, and similar functions. None of the duties required training or preparation on the part of the worker. (tr- 17, 38, 48) From the first day on the job, Leo Johnson's performance was substandard, and by his words and actions he made it clear that he was not remotely interested in fulfilling his duties. On September 23, 1986, he spent his entire work day using the blower to clean the east bleachers. He accomplished in five hours what an experienced worker could do in forty-five minutes and an inexperienced worker could do in two hours. (tr- 17-18, 71, Exhibit #P-1) On September 24, 1986, he spent five hours cleaning the restrooms, a concession stand and one locker room. In Dave Waters' opinion, based upon twenty-six years experience and the supervision of many different workers, these tasks should take a new man approximately two hours. (tr-18) On the third day, Leo Johnson spent four hours washing out two bathrooms and one locker room. He then sprayed out one restroom with a waterhose. At 12:30 Dave Waters gave him a short, fifteen minute assignment, but he laid down his tools and walked away. He returned after about fifteen minutes and Dave Waters told him that he must keep working until his work time was up. Mr. Johnson responded that there was too much work to do, that he didn't think the job would work out for him and that he would talk to Mr. Griffin in personnel about another assignment. He then left the work site. (tr-18-20, Exhibit #P-1) Tile next two days, Mr. Johnson was cut on sick leave. He came to work on Monday, September 30th, but left after two hours. He was out then until Monday, October 14th and worked four full days Friday, the 18th was a Homecoming holiday. He was not very productive that week as he had a portable radio plugged into his ears. Dave Waters asked him to remove the earphone so that he could give him instructions, but he replaced it later. (tr-21-23) Because of the concerns expressed by both Dave Waters and the employee, Wilfred Griffin (Career Service Specialist, and the School Board Superintendent met with Mr. Johnson on October 2, 1985. Mr. Johnson was told again the duties of his job and was told that he was expected to carry out those duties. Mr. Johnson complained about having problems with his feet due to having to stand in water. Later, when Mr. Griffin had the safety officer investigate to see if boots should be purchased, the report back to him was that the field had good drainage and there was no standing water. In addition, boots had already been made available to the workers. (tr-l28-129) At Mr. Griffin's direction, On October 7, 1985, Kirby Stewart asked Mr. Johnson to bring in a note from his doctor. Mr. Johnson replied that it would be "no problem". Thereafter, Kirby Stewart repeated the request on several occasions. The only thing he received was a note from the A.C.O.R.N. Clinic secretary that Leo Johnson was examined on October 8, 1985. (tr-74, Exhibit #P-7, and #P-17) On Monday, October 21, 1985, Mr. Johnson worked four and a half hours. He left the work site without permission for 30 minutes. When he returned and was told by Dave Waters that he was not to leave without permission, he replied that he would leave and sign out whenever he wanted and would not change his work pace for anyone. Later that same day, Kirby Stewart came to the work site since Dave Waters had called to tell him that Leo Johnson left. Mr. Stewart reminded Mr. Johnson about the doctor's note and he wanted to leave immediately to go get it. He and Mr. Stewart walked the grounds while Mr. Stewart pointed out areas where his work was not satisfactory. Leo Johnson replied in a loud and abusive manner that "I beat the transportation department, and now ... [he didn't finish the sentence]" (tr-25,26,27, 113-115, 118, Exhibits #P-7 and P-13) Mr. Johnson did not return to work until December 12, 1985. In the meantime he called in sick every day. He was reminded several times that a doctor's note was required and he responded that the doctor would call. The doctor did not call. He complained of headaches, backaches and swollen feet. Yet on payday, November 27th, he was observed by Mr. Stewart jogging into the Administration building to get his paycheck. (tr-27, 28, 82, Exhibits #P-7, P- 15) When Mr. Johnson appeared for work on December 12, 1985, Mr. Waters gave him the message that he must go see Kirby Stewart. He called Kirby Stewart instead, and was told that since he missed so many days Kirby Stewart needed to talk with him about whether he was physically able to work. Leo Johnson did not go to see Kirby Stewart. Mr. Stewart wrote a memo to Wilfred Griffin detailing the call from Leo Johnson and expressing his need for a resolution of the problems. (Exhibit #P-9) By January 6, 1986, after the holiday break, Mr. Johnson had the impression that he was dismissed. While the record is not at all clear who told him that, Kirby Stewart also thought that Leo Johnson was dismissed as of December 20, 1985 (tr.100, Exhibit #R-6(e)) On January 6, 1986, Leo Johnson called School Board member, Charles Chestnut III, to complain that he was discharged. Charles Chestnut called the School superintendent, Dr. MaGann, who said that It must be a mistake because he didn't know anything about it. Charles Chestnut had been involved in the earlier disciplinary action that the superintendent corrected regarding Leo Johnson. Mr. Chestnut had no personal knowledge regarding Leo Johnson's performance. (tr-174-177) Leo Johnson returned to work at Citizen's Field on January 13, 1986. He took numerous breaks and left in his car at one point during the work day. He was absent for approximately 20 minutes. When he was told to hoe the grass under the bleachers he dragged an iron rake around the area with the teeth up. He put away his tools early and left before 1:00 p.m.. (tr. 30-34) On Tuesday, January 14, 1986, Leo Johnson was also at work but took breaks frequently all day. (tr.34-36) On Wednesday, January 15, 1986, Leo Johnson came to work at 8:00 a.m. Between 8:00 and 10:27, he worked 92 minutes and took breaks totaling 55 minutes. He left at 10:27 after telling Dave Waters that he had a headache. (tr-37) Kirby Stewart saw him at the County Office around 11:00 a.m. and asked why he was there. He replied that the had come to see Wil Griffin because his feet were too swollen to work. (tr.89) On January 17th, Kirby Stewart wrote a memo to his supervisor, Jack Christian reiterating the numerous problems with Leo Johnson and stating that had Mr. Johnson returned to work that morning, he would have officially reprimanded him. (Exhibit #R-10) Leo Johnson never returned to Citizens Field, and on January 21, 1986 he was suspended pending a hearing on his termination. (Exhibit #P-14) Between September 23, 1985 and January 21, 1986, there were a total of 73 school board work days. Leo Johnson was at work for 8 full days, was present for 4 partial days and was absent for 61 full days. (tr. 90-91, Exhibit #P-15) Mr. Johnson was a regular, part-time career service employee of SBAC while he was assigned to citizen's Field. Wilfred Griffin, a Career Service Specialist had the authority to interview, recruit, hire, fire and counsel career service employees. While Dave Waters was responsible for directing Johnson's work in the field and Kirby Stewart was Mr. Johnson's supervisor for administrative purposes, Wilfred: Griffin had the most substantial authority over this employee. As revealed by the record, both Superintendent MaGann and a school board member, Charles Chestnut III, had hand in dealing with Leo Johnson. This complicated hierarchy contributed to confusion and delays but did not prejudice or result in detriment to Mr. Johnson. He used the 57 sick days he transferred from the Department of Transportation, plus the days he earned on the payroll for his time assigned at Citizen's Field and ended with a full paycheck for the month of January. Despite repeated requests by Kirby Stewart and Wilford Griffin, Leo Johnson never produced a doctor's statement explaining his protracted absences. At the hearing he produced a photocopy of an "Illness-in-line-of-duty-leave" form with two lines completed by a Dr. Guido, whom Mr. Johnson contended was a foot doctor. The form is dated and signed by Leo Johnson on January 15, 1986, but the form is incomplete and there is no evidence that anyone at the school board has ever seen it. (tr- 212, 213) Further, the almost illegible statement by the doctor appears to be a diagnosis with nothing about Mr. Johnson's ability to work. (Exhibit #R-9) The verification of his visits to A.C.O.R.N. Clinic provide no information about his ability to work. By letter dated February 25, 1986, Bonnie Coats, RN, the clinic coordinator, responded to Mr. Johnson's request for the dates and reasons for his clinic visits. They are as follows: 08/23/83 Physical Exam for Work 08/07/84 Physical Exam for Work 10/08/85 1. Dizziness Calluses of feet Muscle Spasm 08/22/85 Blood Pressure evaluation 11/19/85 Blood Pressure evaluation 11/26/85 Blood Pressure evaluation 12/10/85 Blood Pressure evaluation (Exhibit #R-5(b)) Leo Johnson had ample notice of his deficient performance, although none in the supervisory chain wrote up a Job Performance Warning Record. Dave Waters did not because Mr. Johnson simply was not on the job enough. (tr-58) Kirby Stewart intended to formalize his complaints in an official reprimand, but Mr. Johnson failed to return to work again. (Exhibit #P-13) Wilfred Griffin orally warned Mr. Johnson about his job performance, leaving the job, excessive breaks and absenteeism. He met with Mr. Johnson on six or seven occasions and shared with him the detailed written memos about his work from Dave Waters and Kirby Stewart. (tr-129, 130, 154, 155) As a career service employee Leo Johnson was subject to the rights and responsibilities found in the SBAC Career Service Employee Handbook. (Exhibit #P-18) Leo Johnson was thoroughly familiar with the provisions of the handbook.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Mr. Robinson, an African-American, was employed by Alliance at its Marianna, Florida, office from 1987 to 2006, when the facility closed. Mr. Robinson worked his way up from the assembly line, making $4.00 per hour, to steel yard coordinator, making $14.87 per hour. Mr. Robinson applied for the position of fabrication supervisor in 2004 and 2005. Both times, other people were chosen for the position. In 2004, Mr. Robinson was a finalist for the fabrication supervisor position. Steven Ramsey, a white male, was chosen for the supervisor position. Mr. Ramsey was hired from outside the company. Mr. Ramsey had considerably more experience as a supervisor than Mr. Robinson. In October 2005, the position for fabrication supervisor became vacant again. Mr. Robinson again applied for the position. The applicant pool was narrowed to two candidates, Mr. Robinson and John Warren (Mr. Warren), a white male. Both Mr. Robinson and Mr. Warren were interviewed by a committee consisting of the plant manager, the general manager, and hiring manager. Both candidates were current employees of Alliance. Alliance was looking for a supervisor with strong interpersonal skills. Both Mr. Robinson and Mr. Warren were valued employees of Alliance. In comparing their past evaluations at Alliance, Mr. Warren’s performance evaluations were stronger than Mr. Robinson’s. Mr. Robinson received two evaluations in 2004. On March 1, 2004, he received a score of 40 out of a possible 50. It was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. On May 12, 2004, he received a score of 40 on his annual evaluation. Again, it was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. Mr. Robinson received a score of 41 on his annual evaluation dated June 1, 2005. It was noted in his evaluation that he had improved in the area of interpersonal relationships over the past year. Mr. Warren received a score of 48 on his annual evaluation dated May 17, 2004. In the area of interpersonal relationships, his supervisor wrote: "Best in Fabrication." Leans forward to meet every challenge, keeps supervisors, peers and customers briefed at every step. Mr. Warren not only knows his customers, he has mastered the ability to identify customer needs before the customer realizes the need—and regularly exceeds customer expectations. Mr. Warren teaches customer service by example—what I call a "smooth operator." On his 2005 annual evaluation, Mr. Warren received a perfect score of 50. It was noted in his evaluation that Mr. Warren was a "solid role model." The evaluations of Mr. Warren and Mr. Robinson played an important role in determining who would be hired as fabrication supervisor. Based on the evaluations, Mr. Warren was the stronger candidate. Edward Mount (Mr. Mount) testified on behalf of Mr. Robinson. Mr. Mount is an African-American, who was employed with Alliance until November 2005. Mr. Mount left Alliance because the Alliance plant in Marianna was closing and would be relocated to Wisconsin. When Mr. Mount left Alliance, he was making $45,000 a year as a floor supervisor on the second shift. Mr. Mount felt that he had been treated fairly by Alliance and that Alliance had not discriminated against him based on his race during his employment with Alliance. During his tenure with Alliance, he was promoted more than five times and was given bonuses and raises. Mr. Robinson felt that Rick Frayniak (Mr. Frayniak), who was fabrication manager, was discriminating against him because of his race. However, Mr. Mount described Mr. Frayniak as a “hard but fair” supervisor, who had a hands-on approach to management. Mr. Mount never heard Mr. Frayniak make any racial remarks and did not feel that Mr. Frayniak had discriminated against him based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Robinson’s Petition for Relief. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of November, 2007.
Findings Of Fact Petitioner is a registered electrical contractor doing business as Howard Hall Electric. On October 16, 1979, Petitioner filed his application to become a certified electrical contractor. Prior to filing his application, Petitioner knew the next examination for such certification was scheduled to be given on November 2, 1979. At its meeting on October 18 and 19, 1979, the board approved Petitioner's application to sit for the Electrical Contractors' Certification Examination. By letter dated October 24, 1979, the Board advised Petitioner of the approval and provided Petitioner with information concerning the November 2, 1979, examination. The information provided included a listing of those areas of competency to be covered by the certification examination, and specifically set forth that the examination would include problems relating to accounting. Petitioner was provided by the Board a reference book list of those books permitted to be utilized during the "open-book" examination. The list did not include a reference book for accounting. Petitioner took the examination on November 2, 1979. On December 3, 1979, the Board directed a letter to the Petitioner advising him that he had failed the examination, having achieved a score of 67. The rules of the Board require that a score of 70 be attained in order to pass the examination. Of the candidates taking the examination on November 2, 1979, 20 persons of the 26 sitting for the examination were successful. Further, 19 of the 24 persons taking the accounting portion of the examination were successful. Petitioner requested a review of his examination, and such review was afforded to him by the Board. Additionally, an analysis of the examination itself was performed by the Office of Examination Services of the Department of Professional Regulation. The Board, which had drafted the examination, reviewed the examination and Petitioner's answers to the questions thereon and determined that the examination was fair and properly graded as to the Petitioner. The Office of Examination Services performed an item analyzation as to the number of candidates responding correctly and incorrectly as to each question on the examination. Although the Office of Examination Services determined that several questions on the examination could have misled some candidates, most candidates responded correctly, and most candidates successfully passed the examination. Although one of the books on the reference list provided by the Board was out of print and unavailable, the examination contained no questions dealing with that subject matter In performing its analysis of the examination, the Office of Examination Services contacted Professor William Hillison of Florida State University to obtain his opinion of the questions in the accounting section of the examination. Dr. Hillison felt that most of the questions in the accounting section were capable of being answered correctly by Florida State University students in their sophomore year in the introductory accounting courses offered by that school. Although Professor Hillison believed that several of the questions in the accounting section were problematic as to the terminology utilized, no testimony was presented that his students would be unable to answer the questions or that the questions were beyond a level of expertise expected to be possessed by a businessman having a general knowledge of management, finance, accounting, and any other functional areas of business.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for licensure as a certified electrical contractor be denied. RECOMMENDED this 7th day of May, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Lehrman, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Legal Section Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent's license as a professional engineer should be disciplined for the reasons given in the Administrative Complaint filed on March 30, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Florida Engineers Management Corporation (FEMC), seeks to impose penal sanctions on the license of Respondent, Allen A. Davis, a professional engineer, on the ground that he committed negligence in the practice of engineering by signing and sealing the electrical portion of a set of plans when he had no expertise in that area of engineering. Respondent denies the allegation and contends that when he signed and sealed that part of the plans, he did not intend to hold himself out as an electrical engineer or for anyone to rely upon the plans in that respect. Respondent is a long-time licensed professional having been issued Professional Engineer License No. 8986 on September 15, 1961, by the Florida Board of Professional Engineers. His current license is effective through February 28, 2001. Respondent's specialty is as a structural engineer, and he holds himself out as having expertise in only that specialty. By experience gained over the years, however, he has a general familiarity with most aspects of engineering, including electrical engineering. Upon graduation from college, Respondent worked for the Florida Department of Transportation (DOT). After leaving DOT some 20 years ago, he engaged in the engineering practice "in various forms of housing construction, including subdivisions, PUD's, house plans themselves, hydraulics and drainage projects involved in civil works throughout." For the last 15 years, he has also served as an engineering consultant for Volusia County. Most recently, he has operated a "one-man shop" in Deland, Florida, "checking, reviewing, and supervising production of plans for houses and other structures involving buildings, and [performing] some highway work [and] some traffic work." Rule 61G15-23.002(2), Florida Administrative Code, provides that whenever an engineer places his signature and seal on a set of documents, the engineer is responsible for all work contained in the documents. However, engineers are only required to sign and seal that portion of a document for which they are proficient. Under informal agency policy, which the FEMC's expert says is based on a "common sense" interpretation of the cited rule, any other drawings which are signed and sealed should contain a disclaimer indicating that the engineer is not responsible for the content which lies outside of his expertise. Whether this policy was disseminated to engineers throughout the state in 1994 is unknown. One of Respondent's projects involved a two-story residential home in Palm Harbor, Florida, being constructed by Brattlof Construction Company, Inc. (Brattlof) in 1994. The third page of the plans described the electrical floor plan for the residence. In June 1994, Respondent signed and sealed that page, even though this discipline was outside his specialty area, and he failed to put a disclaimer on the sheet. As it turned out, the electrical plan contained numerous deficiencies as recited in paragraph 5 of the Administrative Complaint. Respondent says he signed all pages of the plans since this was a long-time practice of other professional engineers in the Volusia County area. An electrical draftsman for Brattlof actually prepared the electrical plan. At that time, the Volusia County Building Department required that before it would accept any building plans, all pages had to be signed and sealed. Although the record is not altogether clear, it appears that if a project was "below 600 amp," a master electrician could sign that portion of the plans. In this case, the house apparently fell into this category. Even so, Respondent signed and sealed every page of the drawings in order to file them with the local agency. By doing so, Respondent unintentionally contravened the rule and informal policy. Respondent pointed out, however, that Brattlof later submitted a separate electrical plan prepared by the electrical subcontractor as a part of the permit process. The significance of this submission was not explained in the record. According to Petitioner's expert, if an engineer is faced with a situation where a signature and seal is required on every page, he or she should engage the services of another professional (an architect or engineer) with expertise in electrical engineering, who could then review the plans and sign and seal them. In terms of mitigation, there is no evidence that Respondent has ever been the subject of a disciplinary action during his lengthy 38-year career as a licensed professional engineer. In addition, there is no evidence that a third party was injured, mislead, or adversely affected by relying on the plans. The project can be considered "minor", no restitution was required, and once this matter was brought to Respondent's attention, he began the practice of placing a disclaimer on all pages outside of his specialty. Finally, it can be inferred that Respondent has high professional standing among his peers, given the fact that he has testified as an expert around 500 times since gaining licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, and that he be given a reprimand. DONE AND ENTERED this 12th day of October, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1999. COPIES FURNISHED: Dennis Barton, Executive Director Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0500 Natalie A. Lowe, Esquire Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0500 Dennis K. Bayer, Esquire Post Office Box 1505 Flagler Beach, Florida 32136 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On or about October 29, 1987, the Petitioner, Frederic T. Forrer, filed an application for a home improvement salesman's license. On February 1, 1988, the Respondent, the Department of Banking and Finance, Division of Finance (Department), entered an Amended Order Denying Home Improvement Salesman's License. The denial is based on: (1) nolo contendere pleas to two charges of criminal misapplication of funds in violation of Section 713.34(3), Florida Statutes; (2) revocation of Forrer's general contractor's license by the Construction Industry Licensing Board; (3) Forrer's insolvency; and (4) probation violations. Forrer's difficulties started with two construction jobs Forrer performed as a general contractor-the Mazzocco job and the Elliot job. On the Mazzocco job, Forrer entered into an arrangement under which John Mazzocco, husband of the owner of the home being renovated, would do some of the work and sub out some of the work. A dispute arose as to who was responsible for paying for over $1,000 of materials and labor and subcontracts Mazzocco ordered. Forrer claimed they were beyond the terms of the contract. On the Elliot job, which called for putting a second floor on Elliot's duplex, Forrer claimed that faulty engineering plans were responsible for a $6000 cost overrun within his first week on the project. Later, with the project about 90 percent complete, a dispute arose about responsibility for that and other cost overruns which Forrer and Elliot could not resolve. Forrer did not finish the job, and Elliot had another contractor finish it. Elliot claimed Forrer owed him about $8,000. In early 1987, John Mazzocco and Elliot both filed criminal charges against Forrer for violating Section 713.34(3), Florida Statutes (1985), for misapplication of monies paid to him for purposes of the Mazzocco and Elliot jobs. Forrer retained legal counsel and was advised to plead nolo contendere. On March 27, 1987, Forrer pled nolo contendere to the charges and was sentenced to five years probation conditioned on, among other things, payment of $237.50 court costs, $100 costs of prosecution, $250 to the court improvement fund, and restitution in an unspecified amount. Forrer's attorney did not advise him of any consequences of a nolo contendere plea on his contractor's license (or any other state license for which he might later apply) and estimated that the restitution probably would approximate $6000, the approximate attorney's fees for going to trial. Forrer agreed with his probation officer to pay $500 per month on his debts until they were paid and went to give the probation officer a money order for $500 on April 27, 1987. By this meeting, Forrer's local contractor's registration had been revoked, and he was expecting his state license to be revoked, too. At the meeting, Forrer was told the restitution would be approximately $31,000 to Mazzocco and $8,000 to Elliot. Forrer did not pay the $500 and called his attorney to withdraw his plea and go to trial. On May 8, 1987, Forrer's probation officer filed charges that Forrer had violated probation by not paying the $500. At the end of May, 1987, the judge denied Forrer's request to withdraw his plea and scheduled a hearing to set the amount of restitution. The probation violation charge remained pending. By this time, Forrer had become dissatisfied with his attorney and applied to the court for appointment of a public defender. In connection with his application, Forrer filed an affidavit on June 16, 1987, swearing that he was insolvent. The court granted the application and set the restitution hearing for mid-July, 1987. Meanwhile, Forrer began working for a roofing contractor, earning enough money to meet his living expenses and make reasonable payments on his probation obligations. After the July hearing, the judge set the restitution at approximately $39,000--$31,000 on the Mazzocco charge and $8,000 on the Elliot charge. A few days later, on July 17, 1987, Forrer went to his probation officer, who demanded an initial payment of $2711, apparently including payments due retroactively from April. Forrer denied ability to make the payment, and the probation officer told Forrer that he would file something to get the matter resolved-- namely, another probation violation charge. The probation violation charge was not heard until November, 1987. During this time, Forrer only made one $20 payment towards the cost of prosecution obligation and one $20 payment towards the court improvement fund obligation. At the hearing, the judge set monthly payments at $160 on the restitution to Mazzocco, $40 on the restitution to Elliot and $73 a month on the other items, for a total of $273 per month, which Forrer has been paying. In December, 1987, the Construction Industry Licensing Board revoked Forrer's license as a general contractor based on the convictions in the Mazzocco and Elliot matters and for diversion of funds received for a construction job, causing inability to fulfill contractual obligations, for failing to pay all subcontractors and suppliers, and for failing to properly supervise the projects. Forrer did not contest the charges, believing that it would be futile for him to do so. When Forrer lost his license, he also lost his job with the roofing company. He began to work in December, 1987, selling encyclopedias but quit because he was not making enough money to pay his living expenses and probation obligations. (He also supports a 16 year old son who Forrer says is hoping to go to college in a few years.) Forrer has lost his condominium (by foreclosure), the car he previously owned, his business and his wife. He remains insolvent and believes he is being denied the ability to earn a living. He says the roofing company for which he worked from June to December, 1987, would hire him back if he is granted the pending license application. Forrer still is on probation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Banking and Finance, Division of Finance, enter a final order denying the application of the Petitioner, Frederic T. Forrer, for a home improvement salesman's license. RECOMMENDED this 20th day of June, 1988 , in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1150 To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the Respondent's proposed findings of fact: 1.-2. Accepted and incorporated. 3. Subordinate and unnecessary. 4.-6. Accepted and incorporated. COPIES FURNISHED: Frederic T. Forrer Post Office Box 24663 Tampa, Florida 33623 Stephen M. Christian, Esquire Office of the Comptroller 1313 North Tampa Street Suite 713 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Plaza Level, The Capitol Tallahassee, Florida 32399-0350
