The Issue The stipulated issue1 is whether Respondent discriminated against Petitioner on the basis of her race by denying Petitioner equal pay in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2007).2
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is an African- American female and filed a complaint of race discrimination, with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is the Office of the Sheriff for Brevard County, Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination. Nor does the evidence prove that Petitioner received unequal pay. Respondent first employed Petitioner sometime in October 2002. Petitioner voluntarily resigned her position of employment with Respondent on May 30, 2008, for a higher-paying position with another employer.3 On July 29, 2006, Respondent transferred Petitioner from the position of payroll specialist, in the accounting department, to a position of personnel officer in the personnel department. The transfer was a promotion, and Petitioner received a 10 percent increase in pay. Ms. Bridget Bauer replaced Petitioner in the accounting department. The supervisor in the personnel office was Ms. Imogene Mullins. Ms. Mullins supported the transfer of Petitioner and considered Petitioner to be a valuable asset due to Petitioner's varied experience, including experience in human resources. On April 3, 2008, Ms. Bauer transferred from the accounting department to another position within Respondent's organization. Ms. Denise Postlethweight, the supervisor of the accounting department, asked Petitioner to temporarily assist the accounting department until the department could replace Ms. Bauer, to train the replacement for Ms. Bauer, and to assist in interviewing applicants to replace Ms. Bauer. Petitioner agreed to perform these temporary duties. Respondent, Ms. Postlethweight, and Ms. Mullins did not promise Petitioner she would receive additional compensation for performing these temporary duties in the accounting department until the accounting department replaced Ms. Bauer. Respondent's administrative policy does not authorize compensation for temporary duties. Ms. Mullins attempted to obtain authorization for increased compensation for the temporary duties performed by Petitioner without success. No pay increase was approved because Petitioner was performing equivalent supervisory duties in the accounting and personnel departments on a temporary basis. One alleged comparator relied on by Petitioner is not a comparator. Ms. Lisa Gillis performed equivalent supervisory duties as the special projects coordinator and sheriff's assistant. However, Ms. Gillis performed equivalent supervisory duties on a permanent basis rather than a temporary basis. Respondent's administrative policy authorizes additional compensation for dual duties performed on a permanent basis. Petitioner spent much of her time during the hearing attempting to show that Ms. Mullins promised additional compensation to Petitioner as an inducement for Petitioner's agreement to perform dual duties on a temporary basis. As previously found, the fact-finder does not find that evidence to be persuasive, and, if it were, the evidence does not rise to the level of a preponderance of the evidence. Moreover, evidence of an offer and acceptance of additional compensation between Ms. Mullins and Petitioner as an inducement for the performance of dual duties is relevant to an action for breach of contract rather than discrimination. Jurisdiction for an action for breach of contract is in circuit court rather than DOAH.
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 finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 15th day of June, 2010.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(e), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2007),1 and Florida Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed.
Findings Of Fact At all times relevant to the Administrative Complaint, Mr. Dipanfilo held Florida Educator’s Certificate No. 451902, covering the area of art, which is valid through June 30, 2013. Mr. Dipanfilo has taught art for almost 27 years. In April and July 2007, Mr. Dipanfilo was employed by the Pinellas County School District at Seminole High School, where he has taught for more than half his career. On April 28, 2007, Mr. Dipanfilo was arrested for driving under the influence. He ran his automobile into the rear of a police vehicle, damaging the police vehicle. Mr. Dipanfilo was also arrested for possession of drugs without a prescription. The drugs were two Viagra tablets, which his physician had given to him as samples. He pled guilty to driving under the influence and nolo contendere to the charge of possession of drugs without a prescription. On July 11, 2007, Mr. Dipanfilo went to a gay bar called the Grand Central located in St. Petersburg, Florida. Mr. Dipanfilo had had too much alcohol to drink and had asked the bartender to call a taxi for him. While Mr. Dipanfilo was waiting for the taxi, he met J.G. At that time, J.G., a 17- year-old male, was enrolled as a student in the Pinellas County School District. At the final hearing, Mr. Dipanfilo testified as follows. When the taxi came to pick Mr. Dipanfilo up, J.G. forced his way into the taxi. The taxi let Mr. Dipanfilo off at a Publix that was located near Mr. Dipanfilo’s condominium. Mr. Dipanfilo did not recall why he got out at Publix. Mr. Dipanfilo walked home alone and stopped at his garage to retrieve some cigarettes from his car. When Mr. Dipanfilo got his cigarettes, J.G. appeared in the garage, asking for a drink of water. Mr. Dipanfilo took J.G. up to Mr. Dipanfilo’s condominium and gave him a bottle of water. J.G. started to take his shirt off, and Mr. Dipanfilo said “Whoa.” J.G. asked to use Mr. Dipanfilo’s cell phone and Mr. Dipanfilo gave it to him. J.G. went into the hall way to use the phone and never returned. Mr. Dipanfilo realized that his car keys were missing and discovered that his car had been stolen by J.G. Mr. Dipanfilo immediately called the police to report the car as stolen. The report to the police was made at 2:58 a.m. Mr. Dipanfilo adamantly denied at the final hearing that any sexual activity had occurred with J.G. At the final hearing, Mr. Dipanfilo did not explain where J.G. left the taxi, why Mr. Dipanfilo would have gotten out of the taxi at Publix, or how J.G. knew where Mr. Dipanfilo lived. On July 11, 2007, Mr. Dipanfilo told the police officer, who responded to Mr. Dipanfilo’s reporting his car stolen, that he and J.G.3 had participated in some “recreational activity” in his apartment. At this time, Mr. Dipanfilo had no reason to believe that he would become a suspect of any crime because the focus was on the stolen vehicle. On July 16, 2007, a police officer called Mr. Dipanfilo to follow up on the investigation of the stolen car. Mr. Dipanfilo told the police officer that he had had too much to drink and that he and J.G. had gone up to Mr. Dipanfilo’s apartment where they “messed around.” On July 16, 2007, Mr. Dipanfilo came to the St. Petersburg Police Department and gave a sworn, written statement to a police officer. Mr. Dipanfilo stated that J.G. had asked if he could hitch a ride in the taxi, and Mr. Dipanfilo agreed to give J.G. a lift. Mr. Dipanfilo further stated that they were dropped off at Mr. Dipanfilo’s apartment and went up to the apartment. Once inside the apartment, Mr. Dipanfilo stated that J.G. “messed around” with him. On July 20, 2007, Mr. Dipanfilo was interviewed by Police Officer David Wawrzynski. Mr. Dipanfilo told Officer Wawrzynski that he and J.G. had left Grand Central in a taxi together and were kissing one another en route to Mr. Dipanfilo’s apartment. Mr. Dipanfilo further stated that once they were in his apartment that he and J.G. disrobed and began rubbing each other and touching each other’s penis. Mr. Dipanfilo stated that he may have given J.G. some money, but that he really could not recall. At a second interview on July 20, 2007, at Mr. Dipanfilo’s apartment, Mr. Dipanfilo told Officer Wawrzynski that there had been some “touchy feely” going on with J.G. on July 11, 2007. At the final hearing, Mr. Dipanfilo stated that he did recall making such statements to the police and does not know why he would make such statements. J.G. testified at the final hearing as follows. He went to Grand Central, which he knew was a bar frequented by gay persons. He met Mr. Dipanfilo at the bar, and Mr. Dipanfilo offered him a ride. They went to Mr. Dipanfilo’s apartment, and Mr. Dipanfilo asked if he could get any drugs. J.G. told him that he could get some drugs from his cousin. J.G. and Mr. Dipanfilo went to the ATM machine at Publix near Mr. Dipanfilo’s apartment and withdrew some money. They went back to the apartment where Mr. Dipanfilo began to touch him in his private areas and other parts of his body. J.G. had his clothes on, but Mr. Dipanfilo had his pants down. The touching went on for five-to-seven minutes. Mr. Dipanfilo asked J.G. to call his cousin to see if he could get some drugs. J.G. pretended to call his cousin. Mr. Dipanfilo gave him some money and the car keys, and J.G. left with the phone and the car keys, never to return. At the final hearing, J.G. stated that he told Mr. Dipanfilo that he was 17 years old at some point during their encounter. The reason he gave for telling Mr. Dipanfilo his age was “because I wasn’t feeling what was going on at the time.” Mr. Dipanfilo denies that he knew that J.G. was a minor. According to Mr. Dipanfilo, he thought that J.G. was in his 30’s. Mr. Dipanfilo’s testimony is not credible. Mr. Dipanfilo taught high school students and should have been able to tell that a teen-ager was not in his 30’s or, at least, should have made inquiries concerning the age of the person with whom he was “messing around.” However, there is no evidence to establish that Mr. Dipanfilo knew or should have known that J.G. was a student. For such a young person, J.G. has a long criminal history. In 2005, J.G. did some jail time for stealing an automobile. From April 2006 to June 2007, J.G. was in a juvenile detention facility for his robberies. In September 2007, J.G. was again incarcerated for battery, possession of marijuana, and violation of probation, and he was still serving that sentence at the time of the final hearing. J.G. readily admitted that he intended to hustle Mr. Dipanfilo for money when he went to Mr. Dipanfilo’s apartment. Mr. Dipanfilo’s testimony at final hearing concerning the events at his apartment with J.G. is not credible. He gave inconsistent written and oral statements to the police on five different occasions. Additionally, what Mr. Dipanfilo told the police is more in line with J.G.’s testimony at the final hearing. It is clear that some sexual activity occurred between J.G. and Mr. Dipanfilo at Mr. Dipanfilo’s apartment. Mr. Dipanfilo’s arrest in connection with his sexual activities with J.G. received publicity in a local newspaper. Students at Seminole High School became aware of the newspaper article and posted copies of the article on the school campus. Administrators of the school were contacted by parents who had concerns over the allegations against Mr. Dipanfilo. The school principal and a school district administrator felt that Mr. Dipanfilo’s effectiveness as a teacher had been impaired as a result of the events on July 11, 2007. Because a teacher is held to a higher ethical and moral standard, it would be difficult for Mr. Dipanfilo to function in a classroom with students who were aware of the circumstances surrounding Mr. Dipanfilo’s arrest for his inappropriate activity with J.G.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Dipanfilo violated Subsections 1012.795(1)(c), 1012.795(e), and 1012.795(1)(f), Florida Statutes, and revoking his educator’s certificate for eight years. DONE AND ENTERED this 30th day of June, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue The issue for determination in this proceeding is whether Respondent used racial epithets in two separate incidents at school and, if so, whether Respondent should be dismissed or otherwise disciplined for such conduct.
Findings Of Fact Petitioner is the Superintendent of Schools for the Broward County School Board (the "School Board"). Petitioner is statutorily required to recommend the placement of School Board personnel and to enforce employee compliance with applicable statutes, rules, and regulations. Respondent is employed by the School Board, pursuant to the provisions of a professional services contract. Respondent is an art teacher at Markham Elementary School in Broward County, Florida ("Markham"). Respondent was so employed for the school year 1991-92, but was suspended without pay on or about June 2, 1992. Markham is predominantly African American. It is one of several pilot schools in Broward County, Florida required by the county to provide an African American Infusion Program and a Multi-cultural Department. The program includes a curriculum designed to make children aware of who they are, their background, and current events. Racial tensions exist at Markham between "clicks" in faculty, staff, and students and between faculty and students. The principal at Markham admonished Ms. Randy Laruso and Ms. Mary Washington, as leaders of the faculty clicks, for engaging in such activities. The principal prohibited racially divisive behavior and established a committee, including Ms. Laruso and Ms. Washington, to improve cohesiveness among the faculty. Racial tensions at Markham are so bad that some faculty members are not comfortable with the situation and others, including Ms. Laruso, have transferred. Respondent is an experienced, competent art teacher. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent spent the last six years teaching in Broward County. Respondent's evaluations for the past six years in Broward County have been satisfactory with no notations that she needed any improvement. Respondent is considered by her principal to be very knowledgeable and competent as a teacher. Respondent was conducting an art class for fifth grade students on December 5, 1991. The class included students from Ms. Mary Washington's fifth grade class as well as three handicapped students from Ms. Rosalyn Samuelsen's class who had recently been mainstreamed. One of the students from Ms. Washington's fifth grade class was Deshanda Henley. Plasticine, a clay that does not harden, was on the floor. Respondent asked Miss Henley to clean up the clay. She refused and asked Respondent "why white people don't like black people." Respondent did not answer but went to the back of the classroom, got a broom and dust pan, handed them to Miss Henley and again asked her to clean up the clay. Miss Henley refused explaining that "you don't make those crackers clean up the clay." When Miss Henley refused Respondent's request again, Respondent said, "The reason white people don't like black people is because they ain't nothing but a bunch of nasty niggers." Miss Henley became angry and called Respondent a "white cracker." The three students from Ms. Washington's class heard the racial epithet used by Respondent. The three students from Ms. Samuelsen's class were at an adjacent table and did not hear the slur. The teacher who was substituting for Ms. Washington on December 5, 1991, gathered Ms. Washington's students when Respondent's class was over. When they were back in Ms. Washington's classroom, Miss Henley reported the racial epithet to the substitute teacher in front of the entire class. There was a discussion among the entire class about the accusation. The substitute teacher sent Miss Henley to the administrative office to report the incident to the principal. Later that day, Miss Henley came to Respondent's class and apologized for calling her a "white cracker." The principal did not hear of the incident until the following Spring. Respondent continued teaching at Markham without incident for the next several months. In January or February, Miss Henley related the incident to Ms. Washington for the first time. Ms. Washington wrote a letter to the principal asking her to come to her class and talk to the students about the allegation that Respondent used a racial epithet in class. The principal went to Ms. Washington's class, listened to the accusations and student concerns, and told them she would look into it. In early March of 1991-92, Mr. Roderick Lester, an interim teacher at Markham that year, was holding a resource class in which he had sixteen or seventeen of Ms. Washington's students. During that class, Miss Henley raised her hand and related the incident to Mr. Lester. Mr. Lester took the students back to their class and informed Ms. Washington of Miss Henley's allegations. Ms. Washington held another discussion with her class regarding the incident. One of the students who heard the racial slur on December 5, 1991, told her parents about the incident for the first time in early March, 1992. When her parents learned that the incident had been reported to the administration on December 5, 1991, and that no action had been taken since then, they were angered. On March 3, 1992, the parents went to Markham to confront Respondent. The student's mother told Respondent that if Respondent used a racial slur again, "I'm going to jack you up." Respondent reported the incident to the front office. The principal was in a meeting off campus. Ms. Laruso was an acting administrator that day. Ms. Laruso called the police and reported the threat. When the principal returned to the campus, she was informed of the day's events. The principal called the parents who had threatened Respondent and asked them to return to the school. Respondent was not invited to meet with the principal or the parents. Nor was she contacted or otherwise advised that the meeting was taking place. The principal never contacted Respondent to ask her version of what happened in the classroom on December 5, 1991. The incident was reported in the local press and created much public attention. The principal contacted the School Board's special investigative unit ("SIU") on March 11, 1992, and requested an investigation into Miss Henley's allegations concerning the incident on December 5, 1991. Sandra Hart, an SIU investigator, conducted the investigation. Respondent was notified that an investigation had been requested concerning the incident on December 5, 1991. The investigation was expanded to include alleged use of racial slurs in front of administrative staff on March 23 and 24, 1992. Respondent was not formally notified until several months later of the additional allegations. By letter dated May 21, 1992, Respondent was suspended from her employment with pay and later suspended without pay. The additional allegations were raised in connection with a demonstration project promised by a representative from the Polaroid Company ("Polaroid") scheduled for March 24, 1992. Respondent was responsible for setting up a class to be put on by the Polaroid representative. Respondent arranged for 50 participants to take the class. For $15, each participant received three continuing education credits and a free Polaroid camera. On the afternoon before the camera class was to begin, Respondent was informed by a telephone call from one of her supervisors that the Polaroid representative would not attend the class unless his round trip air fare was paid. Respondent's supervisor stated that such an arrangement was not financially feasible and instructed Respondent to cancel the class and refund the moneys to the participants. After the telephone conversation, Ms. Lois Davis, the office manager and a registered participant in the cancelled class, asked what happened. Respondent advised Ms. Davis that the camera representative was not going to come. Respondent explained that "he's getting really niggly because he won't pay his plane fare." On March 24, 1992, Respondent was asked by another staff member why the demonstration class had been cancelled. Respondent stated that the Polaroid representative had refused to come unless his air fare was paid. The term "niggle" means to pay too much attention to detail. A "niggler" is one who niggles. Niggle is a word that is commonly used in Britain. Respondent's mother is British. Her husband is Australian. Respondent has visited her family in Britain and Australia on several occasions during the last few years. Respondent frequently uses the terms "niggle", "niggly", or "niggler" at school to describe her teenage daughters to other staff members. Respondent's use of the terms "niggle", "niggler", or "niggly" at Markham impaired her effectiveness in the school system. Such terms have a high probability for creating misunderstanding and ill will in the racially tense environment at Markham and, in fact, had such a result. Racial tensions are high at Markham. Clicks exist between faculty, staff, and students. Racially divisive behavior has been admonished and prohibited by the school's principal. Respondent's explanation is that she chose to use the terms "niggler", niggle", or "niggly" to communicate in such an environment because they are common words in British and Australian society. Respondent's disregard for the potential effect caused by her choice of words in her school environment and the actual misunderstanding caused by that disregard impaired her effectiveness. Respondent's use of the terms "niggler", "niggle", or "niggly" was imprudent in light of Respondent's previous history. Respondent received a written reprimand on August 21, 1990, for an allegation that she used a racial slur in an earlier incident. While other witnesses testified in connection with the investigation leading up to the written reprimand that they heard the racial slur, the student against whom the alleged slur was directed testified that he never heard Respondent use a racial slur against him. The written reprimand notified Respondent that, "Your failure or refusal to abide by this directive could result in disciplinary action up to and including a recommendation for your dismissal." Respondent signed the written reprimand without any admission of the alleged wrong doing. Respondent is an experienced teacher with the benefit of a formal education. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent has ample exposure to the racial diversity of Broward County and previous experience with accusations that she used racial slurs. Respondent should have been more mindful of the audience she was communicating with, more prudent in her choice of words, and more sensitive to the potential for misunderstanding under the circumstances. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act of immorality within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(2). Respondent's conduct was sufficient and notorious to bring Respondent and the educational profession into public disgrace and disrespect and to impair Respondent's service in the community. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act constituting misconduct in office within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). Respondent's conduct impairs her effectiveness in the school system. Respondent's use of the term "nigger" in the classroom on December 5, 1991, constitutes gross insubordination or wilful neglect of duties within the meaning of Florida Administrative Code Rule 6B-4.009(4). Respondent's conduct is an intentional refusal to perform or attend to her duties by failing or refusing to follow the directive in the written reprimand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent should be found not guilty of the charge of using a racial epithet on March 23 and 24, 1992, and guilty of using a racial epithet on December 5, 1991. Respondent should be suspended without pay from the date she was first suspended without pay through the date of the Final Order to be entered in this proceeding. Respondent should also be required to attend and satisfactorily complete the African American Infusion Program administered through the Multi-cultural Department at Markham or a comparable program of education and rehabilitation designated by Petitioner. Nothing in this Recommended Order shall be construed in a manner that precludes Petitioner from "non-renewing" Respondent's professional service contract in accordance with the applicable collective bargaining agreement. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February 1993. DANIEL S. MANRY 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 19th day of February 1993. APPENDIX TO FINAL ORDER, CASE NO. 92-3552 Petitioner's Proposed Findings of Fact 1.-4. Did not cite to the record Accepted in Findings 7. Accepted in Finding 8. Accepted in Finding 12. 8.-9. Did not cite to the record 10. Rejected in Finding 19. 9. Accepted in part and rejected in part in Findings 7. and 18.-20. Respondent's Proposed Findings of Fact Accepted in Finding 2. Accepted in Finding 5. 3.-4. Accepted in Finding 7. 5.-6. Accepted in Finding 9. 7.-8. Accepted in Finding 10. Accepted in Finding 11. Irrelevant and immaterial, in part. Accepted in part in Finding 12. Accepted in Finding 13. Accepted in Finding 10. See Finding 14. Accepted in Findings 16.-17. 16.-17. Rejected in Finding 18. Accepted in Finding 19. Rejected as irrelevant and immaterial 20.-21. Accepted in Findings 20.-22. 22. Rejected as a truism. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Virgil Morgan, Superintendent Broward County School Board 1320 S.W. 4th Street Fort Lauderdale, Florida 33312
The Issue The issues in this case concern an administrative complaint brought by the Petitioner against Respondent under authority set forth in Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code. In the course of that complaint, Respondent is accused of making derogatory racial remarks directed to black students in his class, denying privileges to students within his class based upon race, and the exclusion of a black student from a position in extracurricular activities. He is also accused of physically striking a student on the leg with a stick and grabbing that student and restraining the student against the student's will.
Findings Of Fact At all times relevant to the inquiry Respondent, a white male, was licensed by the State of Florida, Department of Education as a teacher. The teaching certificate issued for that purpose is number 447593. That certificate covers the subject area of math. During the relevant period under examination by the administrative complaint Respondent was employed as a mathematics teacher and a soccer coach at J.E.B. Stuart Junior High School in Duval County, Florida. While teaching one of his math classes in the school year 1988-1989, he made certain remarks which were racial in nature and demeaning to black students in his class. Tekina Watson, a class member in this junior high class, who is black, recalls the Respondent saying something to the effect that, "Black people should stay in their place and stop trying to be white like us." This made her feel uncomfortable or as she describes it made her feel like "dirt." She also heard the Respondent use the term "niggers." Tekina Watson complained about the racial remarks and withdrew from Respondent's math class as a result of those comments. Respondent in the face of those events told Tekina Watson that she should not come out for soccer anymore to serve in her capacity as manager for the boys soccer team. As a result, notwithstanding the attempts of other adults in the school to encourage her to rejoin the team as manager she resigned her position. Shawnae Latrice Worthy was also a student in the math class in which Tekina Watson was a student Ms. Worthy is black. Her recollection of Respondent's remark was to the effect that, "you need to start acting like black and stop trying to be like us", taken to mean that black people should act like black people and not attempt to act like white people. This upset Ms. Worthy. As a consequence of his remarks she was removed from his class as a student. Ronald Alexander Dubois was also a student in the mathematics class previously described. He remembers the Respondent saying something to the effect that, "blacks should act like blacks." Mr. Dubois is black. After the remark he was withdrawn from the math class. The impression this remark left on him was that he simply wanted to get out of the class and avoid any racism. Mr. Dubois also testified about concerns he had that a white female student in the class was allowed to be able to either sharpen a pencil or throw a piece of paper in the trash can and when Tekina Watson attempted to do so she was not allowed that opportunity. It is unclear from the record whether there was justification to allow the unnamed white female to sharpen a pencil or throw a piece of paper in the trash can and deny that opportunity to Tekina Watson. The three students who have been identified by name gave statements to school officials concerning the racial remarks by the Respondent. In January, 1989, while serving as a soccer coach, Respondent became upset with Thomas Earl Cravey, II, concerning Mr. Cravey's effort on the soccer field. In response to what Respondent considered to be inadequate attention to responsibilities as a player, Respondent told Mr. Cravey that he should stop "playing around." Respondent then went to a tree and cut a small branch and took that branch and switched Cravey on the legs leaving two marks. Respondent then escorted the student to the sidelines off the soccer field and in the course of these events grabbed the student by the ear. Words were exchanged between the Respondent and Mr. Cravey, none of which would justify the physical actions that have been described and are attributable to Respondent in dealing with Mr. Cravey. This exchange was seen by another soccer coach James Albert Calise. Based upon this circumstance the incident was investigated by the school and upset Mr. Cravey and his mother. When Respondent took the stand he tried to explain the statements that he had made in his classroom which are recalled by Tekina Watson, Shawnae Latrice Worthy and Ronald Alexander Dubois. It went something to the effect that he was trying to explain to the black students that they should be encouraged by their differences, be proud of those differences and at the same time have respect for themselves and be proud of themselves in that they could be outstanding in mathematics no matter what differences they might have. This explanation that Respondent attempted is not accepted as excusing his remarks, which remarks as reported have derogatory racial overtones. Likewise the attempt to explain away the incident related to the soccer player Thomas Earl Cravey, II, is not accepted. To the extent that this was an effort at providing discipline to Mr. Cravey it was inappropriate discipline. John Emory Trawick who was the principal at J.E.B. Stuart Junior High during the time of the incidents that have been described testified at hearing. On the topic of whether the racial remarks and the conduct directed to the soccer player would constitute actions which cause the Respondent to lose his effectiveness as an employee of the Duval County School Board, Mr. Trawick said that the type of statements made in the presence of students if they continued would cause loss of effectiveness as would any future striking of a student. He stopped short in his opinion of indicating that the Respondent had lost his effectiveness because of the incidents. The proof on balance does not show that the Respondent because of these incidents has lost effectiveness as a teacher. This takes into account the fact that 5 to 7 students withdrew from his mathematics class as a result of the racial remarks.
Recommendation Based upon the consideration of the facts of fact made and the conclusions of law reached, it is recommended that a Final Order be entered which suspends the Respondent's teaching certificate for a period of 60 days. RECOMMENDED this 31st day of January, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3939 Petitioner's Facts The proposed facts of the Petitioner are discussed as follows: Paragraphs 1-7 are subordinate to the facts found with the exception of the reference to the idea that Respondent had referred to black students as "jerks". This is heresay information which may not be used for fact finding. See Section 120.58, Florida Statutes. Paragraph 8 is contrary to facts found. Paragraph 9 suggestion that parents requested that students be taken out of the Respondent's mathematics class is rejected. Again, for reasons that those suggested facts are hearsay and may not be used for fact finding. See Section 120.58(1), Florida Statutes. In this connection, the students desire to leave the class based upon the remarks of Respondent are not sufficient standing alone to say that the Respondent has lost his effectiveness. Paragraphs 10-13 are subordinate to facts found. Paragraph 14's suggestion that the Respondent was removed as a soccer coach is true, but is not necessary to the resolution of this dispute. Paragraph 15 is not necessary to the resolution of this dispute. Paragraphs 16 and 17 are contrary to the testimony of Mr. Trawick and are rejected. Paragraph 18 is contrary to the testimony of the Respondent, in that he did not acknowledge whether his swings at the student Mr. Cravey contacted the legs of that student. Nonetheless, it is found as a fact that he did strike the student. Paragraph 19 is an accurate depiction of the testimony but is not necessary to the resolution of the dispute. COPIES FURNISHED: Rex D. Ware, Esquire Huey, Guilday, Kuersteiner and Tucker, P.A. 215 South Monroe Street, Suite 510 Post Office Box 1794 Tallahassee, FL 32302 John F. Shuler 1253 Ribault River Drive Jacksonville, FL 32233 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Richelieu Williams, an African-American male, was employed as a truck operator, working out of the company's Jacksonville yard at Respondent C and C Pumping Services. C and C Pumping Services is a family-owned cement company with offices, at one time or another, in Groveland, Jacksonville, Tampa, Marianna, and New Orleans. Chris Holdorf, Sr., is the vice president of the company, while his son, Chris Holdorf, Jr., is the manager of the Jacksonville yard. Petitioner appeared through counsel and offered no testimony, whether live or through deposition. When asked, counsel for Petitioner stated that Petitioner voluntarily chose not to attend the final hearing. Petitioner's case, therefore, consisted solely of his initial claim of discrimination filed with the Commission, the Commission's Determination: No Cause, and his Petition for Relief, as well as cross-examination performed by his counsel at hearing. Petitioner claimed in his charge of discrimination filed with the Commission that he was the target of racial epithets by an employee of Respondent, a fellow pump operator named "Paul." He noted that Paul had a small tattoo of a swastika on the back of his hand. Petitioner's charge of discrimination also stated that, following the racially-charged insults, his truck was sabotaged. He claims he informed Chris Holdorf, Jr., his supervisor, of the racial epithets and the alleged sabotage of his truck, and that no action was taken. Mr. Holdorf has no recollection of any complaints by Petitioner about racial discrimination or the alleged sabotage of the truck, and he believes he would certainly know if there was any problem with the equipment under his care. He did acknowledge that Paul had a small tattoo of a swastika on the back of his hand. Petitioner started work with Respondent in the Fall of 2009. He was a good employee and caused no problems for management. Chris Holdorf, Jr., considered Petitioner a "good friend." Petitioner left the employ of Respondent for a short time in 2011 to work at the Hard Rock Café, but returned in November 2011. On December 19, 2011, Petitioner inexplicably quit his job with Respondent, notifying Chris Holdorf, Jr., by telephone message that he had quit. He left his truck keys, phone, and fuel card in the truck when he left for the night on December 19. Chris Holdorf, Jr., never heard anything about the alleged discrimination and truck sabotage until he received the discrimination statement from the Commission in April 2012. Further, the work schedules of Petitioner and Paul made it unlikely that the two of them were present at the same time on the Jacksonville yard more than 15-20 minutes a month. Chris Holdorf, Sr., was in almost daily contact with all of his truck operators and never heard from Petitioner that he had been discriminated against or that his truck had been sabotaged. Paul no longer works with Respondent, having moved away recently. Chris Holdorf, Jr., would be the person who would receive any complaints about discrimination or sabotage in the Jacksonville yard. He received no such complaints from Petitioner or any other employee of the company concerning Petitioner's allegations.
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 finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 4th day of April, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2013. COPIES FURNISHED: Sean C. Barber, Esquire Law Offices of Bohdan Neswiacheny 151 College Drive, Suite 1 Orange Park, Florida 32065 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Leslie Holdorf Chris Holdorf, Sr. C and C Pumping Services 19968 Independence Boulevard Groveland, Florida 34736 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent engaged in discriminatory employment practices, or subjected Petitioner to harassment based on his race, in violation of the Florida Civil Rights Act (FCRA), when, as alleged in the Petition, Petitioner’s supervisor committed a battery against Petitioner with unwanted touching.
Findings Of Fact UWF is a public university within the Florida State University System. See § 1000.21(6)(f), Fla. Stat. Since January 2012, UWF has employed Mr. Lee, an African-American male, as an environmental services technician in the Building Services Department. His employment duties consist of custodial-type work. The Building Services Department is one of UWF’s departments that fall under the supervision of the Facilities Operations Department. 5 Associate Vice President, Administration and Facilities Operations Dr. Melinda Bowers (White Female) Vice President and CFO Dr. Steve Cunningham (White Male) At the time of Mr. Lee’s complaint, his supervisory chain of command, in descending order, was as follows: Director, Materials and Grounds Mr. Myles Sampson (African-American Male) Coordinator, Building Services Ms. Frankie Carlson (White Female) Environmental Services Supervisor Ms. Brenda Rivers (African-American Female) Environmental Services Technician Mr. Billy Ray Lee (African-American Male) The American Federation of State, County, and Municipal Employees (AFSCME) union at UWF represents the environmental service technicians and other employees in the facilities area. Mr. Lee became the president of the AFSCME union at UWF in the fall semester of 2014. Mr. Lee’s Petition focuses on an incident that occurred on May 16, 2017. On that date, Dr. Melinda Bowers conducted, as she did every quarter, a meeting for the environmental services technicians and others in the Building Services Department. When Dr. Bowers mentioned an update concerning an issue with the AFSCME union during this meeting, Mr. Lee interrupted and argued with Dr. Bowers.1/ Dr. Bowers asked Mr. Lee to meet with her after the meeting, or to set up a meeting to discuss his concerns at a different time. Mr. Lee left the meeting room, but returned shortly after the meeting concluded to speak with Dr. Bowers about the AFSCME union issue, or to schedule a meeting to discuss this issue. Dr. Bowers testified that when he returned, Mr. Lee was irate, raised his voice, and was spitting as he spoke. In an effort to calm Mr. Lee, Dr. Bowers briefly touched Mr. Lee on the arm with an “open hand.” Dr. Bowers wanted to understand what Mr. Lee was frustrated about and how she could help. Based on the testimony and evidence presented, Dr. Bowers did not impede or otherwise prevent Mr. Lee from leaving the meeting room. Dr. Bowers and others testified that she was a “touchy person.” The totality of this testimony demonstrated that Dr. Bowers routinely touched other employees in a benign manner, regardless of race or sex. That same day, Mr. Lee filed a report with the UWF Police Department, in which he contended that Dr. Bowers committed a battery against him.2/ Mr. Lee’s report did not indicate that he believed that the Dr. Bowers committed the alleged battery because of Mr. Lee’s race. Rather, it stated, “Dr. Bowers grabbed my arm to get me to continue to talk to her.” UWF Police Sergeant Walter Davis immediately investigated Mr. Lee’s report. As part of his investigation, Sergeant Davis met with all identified witnesses and took statements from each witness. After conducting his investigation, Sergeant Davis found there was a lack of probable cause that a battery occurred. Sergeant Davis’s report also stated: The alleged touching by Dr. Bowers was a form of a communicative gesture that was witnessed by Witnesses. Witnesses also stated Dr. Bowers touching of Lee consisted of an open hand, fingertip touch on his arm. When Dr. Bowers was told by Billy Lee not to touch him, Dr. Bowers ceased touching Lee. On May 16, 2017--and after the incident that formed the basis of Mr. Lee’s police report--Dr. Bowers met with her superior, Dr. Steve Cunningham, and Jamie Sprague of Human Resources, to discuss her concerns with Mr. Lee’s behavior and demeanor that day. During this meeting, the parties discussed that there were other incidents concerning Mr. Lee specifically related to his demeanor or temper that had occurred in the period of approximately one month previously. Those incidents included: April 10-21, 2017: Subcontracted painters that UWF hired complained that Mr. Lee harassed them while working; April 19, 2017: Mr. Lee confronted UWF employee Tiffany Nisenwonger off campus and, with an aggressive tone, told her that he believed there was unfairness at UWF; and May 8-15, 2017: On May 8, 2017, Mr. Lee interrupted a meeting between employees and their supervisors that he was not entitled to attend. On May 9, 2017, Mr. Lee interrupted a meeting between Frankie Carlson and Myles Sampson, and accused Ms. Carlson of illegally recording conversations with employees with her headphones. On May 9 and 15, 2017, Dr. Bowers received letters from UWF employees concerning Mr. Lee’s unprofessional behavior. Based on these incidents, on May 17, 2017, Dr. Cunningham decided to place Mr. Lee on administrative leave, with pay, pursuant to UWF Policy HR 18.02-06/16(5)(i), to allow time for an investigation. During this leave period, UWF prohibited Mr. Lee from entering UWF property without written permission from Dr. Cunningham.3/ Ms. Sprague conducted the investigation, which included a meeting with Mr. Lee to review each of these incidents. On June 8, 2017, Dr. Cunningham informed Mr. Lee, in writing, that Ms. Sprague had completed the investigation, and that Mr. Lee was permitted to return to work on June 12, 2017. Ms. Sprague’s investigation concluded that Mr. Lee violated several aspects of UWF Policy HR-22.00-2004/07 because of his behavior and demeanor. On June 29, 2017, Dr. Cunningham and Dr. Bowers submitted a memorandum to Ms. Sprague, after reviewing Ms. Sprague’s investigative report. Dr. Cunningham and Dr. Bowers found that Mr. Lee repeatedly violated UWF Standards of Conduct in HR-22.00, including: use of poor judgment; insubordination; lying/misleading; threatening or abusive language; and conduct unbecoming a university employee. Dr. Cunningham and Dr. Bowers recommended that UWF suspend Mr. Lee without pay for five working days, and require him to take and complete an anger management course. On June 30, 2017, UWF informed Mr. Lee that it intended to suspend him for five working days without pay, and provided him the right to a predetermination conference. Thereafter, UWF suspended Mr. Lee for five working days without pay. UWF made this decision after Mr. Lee filed his June 7, 2017, charge of discrimination with FCHR. Mr. Lee has not experienced any change in position or title since May 16, 2017. UWF presented evidence that it has awarded Mr. Lee with pay increases on several occasions. Mr. Lee presented no persuasive evidence that UWF’s decision concerning, or actions affecting, him, directly or indirectly, were motivated in any way by race-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race discrimination. Mr. Lee presented no persuasive evidence that UWF’s actions subjected him to harassment based on his race, and that such actions were sufficiently severe or persuasive to alter the terms and conditions of his employment to create a hostile or abusive work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of unlawful race harassment.
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 finding that Petitioner, Billy Ray Lee, did not prove that Respondent, University of West Florida, committed unlawful employment practices against him by engaging in discriminatory employment practices or subjecting Petition to harassment based on his race, and dismissing his Petition for Relief from unlawful employment practices. DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 18th day of December, 2018.
The Issue On April 27, 1995, Petitioner filed a charge of discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment. The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.
Findings Of Fact The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC). Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to $18,000.00. The new hire and promotion were both approved by the Center president, Donald J. "Jerry" Feulner. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination. As Center president, Jerry Feulner accepted the recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995. There is no credible evidence that Dana Monroe's termination was based on racial discrimination. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed. DONE AND ENTERED this 2nd day of April, 1999, 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 2nd day of April, 1999. COPIES FURNISHED: Dana L. Monroe 5116 Hernandes Drive Orlando, Florida 32810 Kimberly A. Wells, Esquire Jackson, Lewis, Schnitzler, & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149
The Issue Should the Education Practices Commission (the Commission) take disciplinary action against Respondent's Teaching Certificate for grounds described in the Administrative Complaint, Case No. 990-0840-R before the Commission?
Findings Of Fact Respondent holds Florida Teaching Certificate No. 728458 in the area of Social Sciences, effective July 30, 1997, through June 30, 2002. At times relevant to the inquiry Respondent was employed as a Social Studies teacher at Mandarin High School, part of the Duval County School District in Jacksonville, Florida. CLASS COVERAGE On November 13, 1998, a secretary in the office at Mandarin High School, contacted Respondent over the school intercom to ask Respondent if Respondent could cover another class than his own during fourth period, which was Respondent's planning period. Respondent answered, "No I cannot, I have to call my doctor." This refers to a health condition which Respondent had which he was treating with an over-the-counter medication and felt the necessity to contact and discuss his condition with his doctor and arrange an appointment to see the doctor if necessary. Ultimately, Respondent did see the doctor concerning this health problem. Beyond the point in time at which the secretary contacted Respondent, Juanita Gresham-Johnson, vice-principal at Mandarin High School, came to Respondent's first period class to speak to Respondent about covering the fourth period class for the teacher not in attendance at school on that date. Ms. Gresham-Johnson explained that she needed Respondent to cover half of the fourth period class where the teacher would be absent and wanted to know which half Respondent would cover. Respondent again commented that he had a medical condition and that he needed to talk to his doctor by telephone. Having been directed by Ms. Gresham-Johnson to cover a portion of the missing teacher's fourth period class, Respondent declined by saying that he was not going to do it. Respondent then left his classroom and went two or three doors down the hall to speak to another teacher, a Mr. Gill who at the time was the Building Representative of Duval Teachers United at Mandarin High School. Mr. Gill came into the hall from his classroom upon Respondent's request. During this encounter Respondent's first period class was left unattended for approximately two minutes. As a result of the incident involving the request to cover the classroom and Respondent's refusal Ms. Gresham- Johnson as vice-principal of Mandarin High School wrote a letter admonishing Respondent. Through counsel, Respondent wrote Dr. Milton Threadcraft, principal at Mandarin High contesting the admonition. Both letters are in Respondent's school personnel file. NAME CALLING During the 1998-1999 school year students S.M. and K.S. were involved in a verbal altercation in Respondent's class. The remarks the students made to each other were unflattering. Respondent called K.S. outside the classroom and in a discussion concerning the circumstance involving K.S. and S.M. stated to K.S., outside the presence of others, "Well, how would you like it if I called you a Black Puerto Rican?" To which K.S. replied, "Well, you know, you can call me a Black Puerto Rican. I'm not going to say nothing to you, but you are going to deal with my parents." COLUMBINE On April 20, 1999, students at Columbine High School shot persons at the school. The shootings at Columbine involved deaths. This became public knowledge, to include Respondent and persons who taught or attended Mandarin High School. On April 21, 1999, the subject of the shootings at Columbine High School were a topic of discussion at Mandarin High School. On April 21, 1999, the subject of the Columbine shootings was brought up by students in Respondent's third period class. In particular, remarks were made about student M.B. at Mandarin High School. M.B. was not at school on April 21, 1999. Respondent entered into the conversation in open class. The conversation included a reference by Respondent to M.B.'s backpack being "big enough to hold a rifle." All this was in association with the discussion of the Columbine shootings. Other remarks not attributable to Respondent were that M.B. read a lot of criminal books and was the silent type like the students that were involved in the Columbine shootings. CONVERSATION WITH K.S.' PARENT K.S. was interviewed by District personnel concerning the circumstances surrounding Respondent's remarks about M.B. that have been set forth. Respondent called Mrs. M.E.S., K.S.' mother, and referred to the students who had been pulled out of his class to give statements against Respondent, K.S. among them. Respondent told Mrs. M.E.S. if K.S. made negative statements against him in reference to M.B., then Respondent would fail K.S. PERFORMANCE EVALUATIONS For the most part, during his time at Mandarin High, Respondent has been found a competent teacher in all areas of professional evaluation.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered in accordance with Section 231.262(6), Florida Statutes, finding the Respondent in violation of Counts 2 through 5, dismissing Count 1 and Counts 6 through 8 and suspending Respondent's Teaching Certificate for a period of 30 days pursuant to Section 231.28(1), Florida Statutes. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of July, 2001.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on August 27, 2012.
Findings Of Fact Petitioner is a female who has identified her race as Asian and her national origin as Indian. Petitioner’s age was not established in evidence. However, based upon the attachments to Petitioner’s Petition for Relief, Petitioner was identified as 43 years old, presumably at the time she filed the Complaint of Employment Discrimination. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 43 is a reasonable approximation of her age. Respondent, Leon County School Board (LCSB), is an employer within the meaning of the Florida Civil Rights Act. Petitioner has applied for numerous job openings with the School Board over a number of years. However, based upon the applicable statute of limitations as explained more fully in the Conclusions of Law, there are five LCSB job postings that are at issue in this proceeding, one of which was never filled. The job positions applied for are as follows: --Job posting 1071-2012, Custodian position at Nims Middle School. --Job Posting 0170-2012, Instructional paraprofessional position at Sealy Elementary School. --Job Posting 011-2012, custodian position at Rickards High School. --Job posting 0201-2012, Assistant Manager for Extended Day Program at J. Michael Conley Elementary School. --Job posting 0215-2012, Receptionist at Leon County High School. This position was not filled. Petitioner is the mother of two children who are or have been students in the Leon County schools. Petitioner has extensive volunteering experience in LCSB schools. In 2008, she received the Volunteer of the Year award for her volunteer work at Sealy Elementary School. She was invited to and attended the Volunteers of the Year Luncheon in 2008. Petitioner also volunteered at Conley Elementary School in 2011. While Petitioner has considerable volunteer experience in Leon County Schools, she has no job/employment experience since coming to the United States in 1998. Petitioner holds a college degree from Utkal University in India. The unofficial transcript states that it is a “Honours Diploma for Bachelor of Arts (Three Year Degree Course).” Respondent uses the PATS (Paperless Applicant Tracking System) system to accept applications for all job openings within the Leon County School District. Based on information inputted into PATS by applicants, a list of qualified individuals is generated for each position. The PATS system does not ask for or identify an applicant’s age, race, national origin, or sex. Vitalis Dennis is the Director of Human Resources for the LCSB. She has general supervision over the PATS system. According to Ms. Dennis, LCSB does not count volunteer work in evaluating work experience. This is a generally applied policy, applied to all applicants, including Petitioner. Hiring decisions are made by each school’s principal. The school principals send recommendations for hiring to the District Human Resources office. Job Posting 1071-2012 Petitioner applied for job posting 1071-2012, a custodial position at Nims Middle School. At that time, Charles Finley was assistant principal at Nims. He was in charge of interviewing and hiring vacant custodial positions. The executive secretary at Nims printed a list of applicants from PATS. He then accessed PATS to check applicants’ educational and work history to identify applicants with previous custodial work experience. Generally, he would interview eight to 12 applicants. The successful candidate for this position was Eloise Hatten. Ms. Hatten was 52 years of age, is African-American, and is female.2/ Ms. Hatten’s application reflects approximately nine years’ of cleaning commercial/institutional experience. Mr. Finnley interviewed Ms. Hatten and testified that the interview went well. He describes Ms. Hatten, who is still employed at Nims, as tied for the best hire he ever made. Job Posting 0170-2012 Petitioner applied for Job Posting 0170-2012, Instructional Paraprofessional at Sealy Elementary. Demetria Clemons is the principal of Sealy Elementary School. Ms. Clemons receives and reviews the PATS list of applicants. She then makes a list of applicants for her secretary to call to set up interviews. When reviewing the list, she looks to see if any applicant is a veteran. Then she looks to see if anyone on the list had previous work experience with her or was recommended by a colleague. The successful applicant was Alisha Saint Cloud. Ms. Saint Cloud was 24 years of age, is African-American, and is female. Ms. Clemons interviewed Ms. Saint Cloud and offered her the job. Ms. Saint Cloud was selected for this position primarily because she held the position as an annual contract employee the previous school year. Annual contract employees often are given notice letters at the end of a school year, as principals do not know at that time whether they will be able to rehire them for the following school year. If staffing allocations allow, the job is then posted. Ms. Saint Cloud was in that situation when Ms. Clemons hired her for this permanent position. Ms. Clemons knew of Petitioner’s volunteer work at Sealy, but the volunteer work was done in individual classrooms, not directly for Ms. Clemons. Job Posting 011-2012 Petitioner applied for Job Posting 011-2012, custodian position at Rickards High School. Clebern Russell Edwards is the assistant principal at Rickards High School. He made the hiring decision for this custodial position for which Petitioner applied. A list of applicants generated from PATS was printed by the principal’s secretary. He looked to see if any applicants were veterans, then whether any were recommended by colleagues. The successful applicant for that position was Jaterrius Robinson. Mr. Robinson was 23 years of age, and is an African-American male. Mr. Robinson had institutional/ Commercial-cleaning experience and was a graduate of Rickards High School. Mr. Edwards believes that it is important to have someone with experience cleaning in an environment similar to a school in such a position. Mr. Edwards took into consideration Mr. Robinson’s work experience, being an alumnus of Rickards, and his outstanding interview when making the decision to hire Mr. Robinson for the job. Job Posting 0201-2012 Petitioner applied for job posting 0201-2012, assistant manager for the Extended Day Program at J. Michael Conley Elementary School. Danielle Dielbeck is the Extended Day Manager at Conley Elementary School. She is responsible for hiring the Extended Day personnel and supervising those employees. Jeremy Rollins was the successful applicant for this position. Mr. Rollins was 23 years of age, and is an African- American male. Ms. Dielbeck reviewed the PATS list of applicants to determine who would be a good fit for the job. She also takes into consideration any recommendations that may come from other schools. Mr. Robinson has work experience as an after-school teacher. Ms. Dielback selected Mr. Robinson because of his experience as an after-school teacher in another program with a large number of students, and because he also had experience as a cashier for a grocery company. Ms. Dielbeck believed his cashier experience demonstrated that he had experience handling money. She determined that this was a benefit because the Extended Day Program is responsible for its own budget. Petitioner’s assertions Petitioner strongly believes that LCSB has systematically discriminated against her by not hiring her. She believes that LCSB is harassing her personally, including an unnamed person parking her car outside the Rath’s home and taking photographs.3/ However, there is no competent evidence to support her subjective belief that the person in the car has anything to do with LCSB. There is no competent evidence in the record that supports any coordinated efforts or conspiracy by LCSB personnel to deny her employment. Each person with the responsibility to make hiring decisions did so independently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that the Leon County School Board is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Complaint of Employment Discrimination. DONE AND ENTERED this 29th day of October, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2013.
