Findings Of Fact Petitioner, Leonard W. Sweeting (Sweating), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a licensed practical nurse (LPN), at South Florida State Hospital. The evidence establishes that Sweeting was absent without authorized leave on three consecutive workdays, to wit: April 8-10, 1985. At no time did Sweeting notify the Department of his intention not to appear for work on those dates. By certified letter dated April 11, 1985, return receipt requested, Sweeting was advised that his absence from work since April 5, 1985 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Sweeting of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. By letter dated April 13, 1985, and filed April 23, 1985, Sweeting timely petitioned the Department of Administration for review. On June 5, 1985, the Department of Administration accepted Sweeting's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. Sweeting asserts that events predating his absence from work are pertinent to the issue of abandonment. The evidence establishes that on April 1, 1985 Sweeting's supervisor, Ms. Rotton, requested a copy of his current nursing license. Sweeting professed his inability to produce it, since he had not yet received it in the mail. Sweeting failed to produce his current license through April 4, 1985, or, alternatively, any evidence that he had applied for it. Finally, on April 4, 1985, Ms. Rotton advised Sweeting to produce proof of his application for licensure on April 5, 1985, or he would be unable to perform LPN duties at the hospital. Sweeting called in "sick" April 5, 1985, and did not report for work. April 6-7, 1985 were Sweeting's normal days off. By letter dated April 5, 1985 the personnel director advised Sweeting: Please be advised that your LPN license expired on March 31, 1985. You must submit proof of renewal by April 10, 1985 to Ms. Marge Rotton, Nurse Supervisor III. Failure to do so will result in your inability to continue to perform LPN duties at South Florida State Hospital and be subject to appropriate disciplinary action. From now until April 10, you will not be allowed to perform duties which require licensing. Should you have any questions, please contact Alice Tiscell, 983-4321, extension 2051. Sweeting did not contact Ms. Tisdell, or any other person at South Florida State Hospital. Sweeting initially assertec that the events of April 1- 4, 1985 were pertinent because he was told by Ms. Rotton that without his license he could not work. If Ms. Rotton had so advised Sweeting, his absence would have been authorized. However, Sweeting concedes he was advised that he would not be permitted to perform LPN duties, and that alternative duties would be assigned. Accordingly, the events of April 1-4, 1985 are not pertinent, and afford no justification for Sweeting's absence April 8-10, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Leonard W. Sweeting, abandoned his position and resigned from the Career Service. Dismisses the petition of Leonard W. Sweeting with prejudice. DONE AND ENTERED this 19th day of July, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of July, 1985. COPIES FURNISHED: Leonard W. Sweeting 19574 N.W. 32nd Court Carol City, Florida 33056 Marc Gold, Esq. South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida 33025-1499 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary - Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301 STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEONARD W SWEETING Petitioner, DOA Case No. AB-85-9 DOAH Case No 85-1834 DEPARTMENT OF HEALTH AND. REHABILITATIVE SERVICES (South Florida State Hospital), Respondent. /
Findings Of Fact At all times material, Respondent, Claudia Walker, was employed as a continuing contract teacher by Petitioner Broward County School Board. The Respondent taught from January 1979 through November 1, 1984 at Bright Horizons School. In November 1984, she transferred to South Florida State Exceptional Student Center and thereafter taught elementary school age children with behavioral problems. Among those assigned to her Self-contained classroom were some homicidal and suicidal students with low impulse control. During the time Respondent has worked for the Broward County School Board, her teaching evaluations have been good, to outstanding, to exceptional. She has never previously been cited or disciplined. Doris Seitner was employed by Petitioner as a teaching assistant from approximately September 3, 1985 to December 3, 1985 and was assigned to Respondent's class. On Thursday, November 7, 1985, Respondent and Seitner took the class of about 25 students on a field trip to the Metro Zoo. Prior to their departure on the bus, Ms. Seitner noticed Respondent entering the staff restroom. When Respondent emerged, a student immediately entered the restroom. Upon the student exiting the restroom, Ms. Seitner also entered the restroom where she found a small pink glasses case. Believing the case belonged to the student, the aide opened the purse and saw a plastic baggie containing a white powder, a small vial, a razor blade, and several cut up straws. Upon leaving the restroom, Ms. Seitner encountered the Respondent, who identified the case as hers and took it. At this point, the state of events was that Doris Seitner had seen a substance she thought was cocaine. Doris Seitner is not an expert on drug identification. She admits never previously having seen cocaine up close. Although she had seen some drug abuse classes at the school, she had no courses in cocaine and had never smelled or tasted it. She did not open the plastic baggie or examine its contents on November 7, 1985. However, believing that the case contained cocaine and drug related paraphernalia, Ms. Seitner confided what she had found, together with her suspicions to a number of people and sought their advice on how to proceed. Shawn Joseph, another teacher's aide, suggested Ms. Seitner inform the school officials of what she had found. Later in the evening, Ms. Seitner contacted Pam Tepsic, a teacher on task assignment, who suggested she advise the principal immediately. The acting principal, Kathryn Mangan, upon learning of the discovery, contacted Howard Stearns, Petitioner's Director of Internal Affairs, who referred her to William Bohan. At all times material, William Bohan was employed by Petitioner as an investigator for Internal Affairs and has been a certified law enforcement officer. On November 12, 1985, Mangan told Bohan about Ms. Seitner's belief that she had seen cocaine in Respondent's glasses case. Bohan instructed Mangan to take no action but to call him in case the glasses case was seen again. Bohan interviewed Ms. Seitner and instructed her to watch out for the case. On the morning of Monday, November 25, 1985, while Respondent was in her classroom, Ms. Seitner came in and asked if she could fetch lunch for Respondent. Respondent retrieved her purse from the back room of the self- contained classroom, a location called "the teacher planning area", wherein she normally isolates her purse from the students, and gave Ms. Seitner money to pay for her lunch. Doris Seitner sat at the desk, and looking down into the Respondent's unzipped purse, spotted the pink glasses case. Seitner notified Tepsic, who notified John Smith, acting principal, who notified Bohan, who came to the school. Bohan and Tepsic walked to Respondent's classroom. When they arrived there, Tepsic approached Respondent in the classroom; Bohan stationed himself at the door. Tepsic told Respondent that a man wanted to see her in the principal's office. Tepsic avoided responding to Respondent's repeated requests to know what was going on or answered Respondent that she did not know what was going on. Respondent walked with Tepsic to the door. Bohan asked Respondent if the purse by her classroom desk was hers. The Respondent answered, "yes" whereupon Bohan walked over, picked up the purse, and, retaining the purse, began walking with Respondent and Pam Tepsic to John Smith's office. On the way to Smith's office, Respondent told Bohan she could carry her own purse but Bohan responded that he could carry it. She repeated her questions to Pam Tepsic, asking what was going on and received the same evasions. In making the immediately preceding finding of fact, the testimony of Pam Tepsic, Investigator Bohan, and Respondent have been considered and weighed. While Investigator Bohan testified that Respondent said and did nothing to claim her purse after he seized it and Pam Tepsic initially related that Respondent said nothing about her purse at any time in the classroom or while walking over to the principal's office, Pam Tepsic's testimony as a whole reveals that she was particularly nervous during all these incidents and that at a point in time closer to the actual events, she had believed some such conversation took place between Bohan and Respondent, but that on the date of formal hearing she simply could not recall any conversation between Bohan and the Respondent, including Bohan's asking Respondent if the purse were hers and Respondent's reply, "yes", statements Bohan and Respondent each testified had been made. The Respondent's account of her request to carry her own purse is highly credible. It is simply not credible that any adult woman would not request return of such an intimate item as her purse, containing all her personal effects, including valuables and money, from a man whom she had never seen before in the absence of any explanation of what was going on. Bohan, Tepsic, and Respondent entered John Smith's office. Bohan placed Respondent's purse on Smith's desk in front of himself. Bohan told Respondent he had been informed she was in possession of an illegal drug and asked if she would consent to Bohan's searching her purse. Pam Tepsic's recollection of what happened next was that either Respondent said she would consent to the search or that someone else said Respondent had consented or said something like, "Well, then you consent," to Respondent. Respondent denies ever being asked to consent to a search of her purse. John Smith understood Bohan to ask permission to search the purse and understood that Respondent said "yes" to Bohan's request. Bohan relates an affirmative answer from Respondent. Before he started searching her purse, but after the question concerning consent/permission, Bohan asked Respondent did she have anything in her purse that might be a problem that she might want to tell him about before he searched her purse. Tepsic, Bohan, Smith, and Respondent are in agreement that Respondent replied, "yes" that she did want to tell Bohan what was in the purse. The explanation given at that time was that early that morning she had taken cocaine and other items from her estranged husband who had a drug problem. Bohan removed from Respondent's purse the pink glasses case; some other unrelated items; four small plastic bags containing a white powdery residue; four straws cut 2-1/4 inches to 2-3/4 inches long; one GEM single edge razor blade; one small, 3/4 inch empty vial; one piece of aluminum foil 2-1/2 inches by 3-1/4 inches; eight straws in Wendy's wrappers; one wooden toothpick; and one nickel. When Respondent persisted in her explanation that the drugs and paraphernalia were her husband's property and that she had taken them to protect him but in response to further questioning by Bohan, Respondent was unable to flesh out an explanation she had begun concerning the husband's drug counselling and treatment and her participation therein, Bohan told Respondent that her options were either jail in Fort Lauderdale via the Broward County Sheriff's Department or discussing the matter at Petitioner's Internal Affairs Office. Although Bohan asserted that he made no "threats," Bohan, Tepsic, Smith, and Respondent concur that these were the only alternatives Bohan provided Respondent during their confrontation in Smith's office. A subsequent laboratory analysis conducted on the items seized November 25, 1985 revealed the presence of cocaine only in the small plastic bag containing the white powder. The property in the purse was taken into the Internal Affairs Office for inventory. These items, including the cocaine, were described by Ms. Seitner as "similar" to the items she saw in the pink case on November 7, 1985. Respondent customarily keeps a razor blade in her purse to use for arts and crafts projects in her class. Other teachers at the center also use razor blades to perform art projects. The Respondent customarily keeps drinking straws in her purse to give to her three small children to drink with while they are riding in her car. Article XVIII, Section K, of the current collective bargaining agreement between the Broward Teachers Union and Petitioner provides: "No investigation of an em- ployee, beyond preliminary inquiry, by the Internal Affairs Department may be undertaken without written notice to the employee, such notice to include a statement of the cause giving rise to the investigation." No written notice was given to Respondent by Petitioner. A sign posted on the grounds of the school at the front gate notifies anyone entering that they are subject to being searched while on the grounds. (TR 149-150) Respondent accompanied Bohan to Internal Affairs where Bohan and Stearns interrogated her. Respondent again told them the drugs inventoried belonged to her husband. She further revealed to Stearns, apparently in hopes of receiving counselling instead of dismissal, that she had been clean of cocaine during the nine months of her recent pregnancy and clean recently until the immediately preceding Saturday night. (TR-205) After Internal Affairs finished questioning Respondent, Bohan took her to the Employee Assistance Program and then later to the Broward Alcohol and Rehabilitation Center. Respondent claims she was denied use of a phone to contact anyone until she reached the Employee Assistance Program, but she concedes there were public phones available at the school and she did not insist on using any. At hearing, Respondent testified that she had never used cocaine and would not have used it in November, 1985 because she was breastfeeding her new daughter. She also testified that the contraband items were taken from her husband the morning of November 25, however, rather than corroborating this story, the testimony of Wilton Johnson, her estranged husband, is contrary to Respondent's account of the incident in so many details as to adversely affect Respondent's credibility that the incident occurred. Respondent was suspended with pay November 26-28, 1985, the remainder of the school week. On Monday, December 2, 1985, she was permitted to resume her classroom duties until she was notified of suspension with pay, December 6, 1985. On December 19, 1985, Petitioner suspended Respondent without pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order dismissing Counts I and II, finding Respondent guilty as charged in Counts III and IV, and dismissing her from employment. DONE and ORDERED this 5th day of September, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1986.
The Issue The issue is whether Respondent denied Petitioner access to a public accommodation on the basis of her disability in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on April 2, 2009, that reasonable cause exists to believe that Respondent denied Petitioner access to a public accommodation on the basis of her disability. Respondent requested a hearing, and the Department referred the matter to DOAH. Several facts are undisputed. Petitioner is a disabled female confined to a wheel chair. Mr. Chris Maganias is the owner and operator of the respondent company. The principal business of the company is the operation of a skating rink in Pinellas Park, Florida. Petitioner did not present a prima facie case of denial of access to a public accommodation. After the representative for Petitioner was placed under oath, the representative stated the issue that she was there to resolve, but testified to no substantive matters or other evidence. Her testimony lasted less than three minutes. There was no cross-examination. Petitioner did not testify. After excusing Petitioner's representative from her oath, the ALJ asked Petitioner if she wished to testify, and Petitioner stated that she did not want to testify. Petitioner's lone exhibit is a two-page affidavit that lists the allegations which make up the complaint against Respondent. However, the affidavit does not explain or supplement competent and substantial testimony, or other evidence, of the representative or Petitioner at the hearing. This is a de novo hearing and not an appellate review of a determination previously made by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DOAH enter a final order no later than February 3, 2010, pursuant to Section 70-77(g)(13) of the Code, finding Respondent not guilty of the allegations in the complaint. DONE AND ENTERED this 31st day of December, 2009, 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 31st day of December, 2009. COPIES FURNISHED: Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Melissa Cook c/o Eleanor Cook Johnson 15047 Georgey Boulevard Clearwater, Florida 33760 Peter Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Chris Maganias Astro Skate Pinellas Park, LLC 10001 66th Street North Pinellas Park, Florida 33782
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In 1975, when she was 36 years of age, Petitioner was dating a married man. When the man's wife found out about her husband's extramarital affair, she began to harass Petitioner and members of Petitioner's family. On March 4, 1975, Petitioner was sitting in her vehicle with her then 17-year old son in the driveway of her home. She was about to leave to take her son to work when her boyfriend's wife drove up and blocked the driveway. Petitioner's son got out of the car and asked the wife to move her vehicle. The wife responded by making what Petitioner perceived to be an "ugly" gesture that was directed to Petitioner's son. Petitioner reacted in anger to the wife's response. She exited her vehicle and physically attacked the wife, bloodying the wife's nose. Police officers arrived on the scene and arrested Petitioner. Petitioner was charged with, and on April 22, 1975, convicted of, aggravated assault as a result of this March 4, 1975, incident. As punishment for committing this crime, she was directed to pay a $50.00 fine and court costs. Petitioner recognizes that her physically aggressive behavior on March 4, 1975, was inappropriate. She is remorseful and repentant. Petitioner has not committed any similar unlawful acts of violence in the more than 22 years since the March 4, 1975, incident. In 1980, Petitioner was arrested and charged with two counts of resisting a law enforcement officer without violence after she had intervened in an altercation involving her son and several police officers, but the charges against her were ultimately dismissed. Petitioner is a certified nursing assistant. She began working as nursing assistant approximately 30 years ago. As a nursing assistant, Petitioner has assisted individuals (in their homes and in institutional settings) needing help in performing their activities of daily living. She has provided such assistance without incident, notwithstanding that she has had to care for some individuals who have been quite difficult, including certain residents of South Florida State Hospital, a state-operated mental health facility, where she worked from 1981 through 1991 (as an employee of two different private nursing agencies with whom the hospital had contracted to provide nursing assistant services) and from January 24, 1997, to July 23, 1997 (as an employee of the hospital).2 There were occasions during the time she worked at South Florida State Hospital that residents would become physically aggressive toward her. On these occasions, Petitioner reacted, not in kind, but rather with restraint and in a professional manner. On July 23, 1997, after a background screening investigation conducted by the Department had revealed that she was not qualified to serve in her position at South Florida State because of her 1975 conviction for aggravated assault, and following the Department's preliminary denial of her request for an exemption from such disqualification, Petitioner was terminated from her position at the hospital. Petitioner has been unemployed since July 23, 1997. Although she has been unable to find work as a nursing assistant, Petitioner still continues to perform nursing assistant services (without compensation) for her elderly aunt, for whom she has cared for the past five years. Based upon Petitioner's history since the March 4, 1975, incident that led to her arrest and conviction for aggravated assault, it appears that she has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.
Appeal For This Case Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by. filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the office of the Clerk of the Department of Management Services on this 96% day of December » 2012. MLE Agency Clerk Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’BRIEN, Petitioner, DOAH Case No. 12-3396 vs. Department of Management Services, Notice of Voluntary Dismissal Division of State Group Insurance, Respondent. / This Respondent files this notice of voluntary dismissal on behalf of both parties, and states: This matter was held in abeyance, pending an external medical review. Based upon that report, the Petitioner has chosen to dismiss his appeal . See Attachment A. Wherefore, the Parties request that this matter be dismissed with prejudice. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. mail, this 10th day of December 2012, to 1833 Halstead Blvd., Apt. 214 Tallahassee, Florida 32309. Respectfully submitted, onja’P. Mathews Florida Bar ID No. 163680 Allison Deison Florida Bar ID No. 0143855 Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 850-922-9665- Telephone 850-922-6312- Telecopier Page 1 of 1 Filed December 10, 2012 1:06 PM Division of Administrative Hearings Mathews, Sonja . From: O'Brien, Michael Sent: Monday, December 10, 2012 11:18 AM To: Mathews, Sonja Subject: appeal Ms. Mathews, | have received MCMC’s review of my case and am hereby dropping my appeal. Thank you, Mike O’Brien Michael O’Brien GIS / Data Services Florida Natural Areas Inventory Florida State University 850-224-8207 ext. 211 mobrian@fsu.edu A\odewact A STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’ BRIEN, ) Petitioner, ) vs. Case No. 12-3396 SERVICES, DIVISION OF STATE ) ) DEPARTMENT OF MANAGEMENT ) ) GROUP INSURANCE, ) Respondent. ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the parties’ Notice of Voluntary Dismissal filed December 10, 2012, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Management Services, Division of State Group Insurance. DONE AND ORDERED this llth day of December, 2012, in Tallahassee, Leon County, Florida. Unw We SUZANNE VAN WYK 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 11th day of December, 2012.
Findings Of Fact Ms. Otto began her employment with the Council on April 8, 1975, when she was hired as an Assistant Director. At that time she was one of two assistant directors and was immediately below the Executive Director in responsibility. After Monroe County was declared am area of Critical State Concern under Chapter 380, Florida Statutes, Ms. Otto was directed to provide staff assistance to Monroe County to assist them in complying with that designation. After Mr. Barry Peterson, Executive Director, Ms. Otto was the lead staffer of the Regional Planning Council who had responsibility in this area. Mr. Peterson in his testimony related that towards the end of June of 1975 Ms. Otto was directed to attend a meeting of the Monroe County Commission to discuss aspects of complying with the designation of Monroe County as an area of Critical State Concern. Ms. Otto did attend this meeting and reported back to Mr. Peterson that the meeting had gone well. Subsequently, Mr. Peterson testified that he learned that the meeting had not gone well and furnished a news clipping which dealt with the meeting of the County Commission which article indicates that Ms. Otto had made several statements which offended the County Commissioners. Apparently, on the basis of the report, Mr. Peterson received concerning Ms. Otto's statements at the County Commissioners' meeting, her responsibilities were changed in the Regional Planning Council to give her less contact with the public. With regard to Ms. Otto's alleged behavior at the Monroe County Commissioners' meeting, it must be noted that no direct evidence was presented at this hearing which would substantiate a finding that she acted improperly before the Commissioners. No testimony was presented from any person who was at that meeting and this Hearing Officer cannot make any finding of fact based on pure hearsay alone [Sec.120.58(1)(a), F.S.]. Furthermore, it must be assumed Ms. Otto was authorized to speak as she thought proper at this meeting and should some County Commissioners have taken offense at her statements does not indicate that such statements were automatically improper. In any case, no evidence was presented regarding this meeting which substantiates a finding of fact relating to the specific acts of misconduct charged against Ms. Otto. Another incident which presumably reflected upon Ms. Otto's ability and personality involved an incident where she expressed displeasure with certain comments made by a chairman of a volunteer citizens group. Ms. Otto stated she was in favor of confronting that person and challenging him on what she considered to be "sexist" remarks; however, it was decided by others in the Council that this should not be done. Ms. Otto did not confront this individual on her own. This Hearing Officer is uncertain as to whether any conclusion can be drawn regarding this incident. It certainly does not lend credence to any of the specific charges or reasons stated by the Council for firing of the Petitioner. All that appears to have happened is that Ms. Otto expressed her opinion and others disagreed with her. She did not act on her own nor cause any unpleasantness between the individual who made these remarks and the South Florida Regional Planning Council. In any case, Ms. Otto was given new duties and titled "Program Director for Management Services". She was given a list of responsibilities by Mr. Peterson, the Executive Director. These responsibilities included writing grant applications, preparing drafts of a cash flow sheet, and various other incidental duties. According to Mr. Peterson, Ms. Otto in these new responsibilities required specific instructions from him for much of what she did. He stated she did not do grant applications until he told her to and the one cash flow sheet she prepared was incomplete. Much of the above testimony was vague in that it was uncertain as to whether Ms. Otto had sufficient information at her immediate disposal to prepare a complete cash flow sheet and nothing appears to be inherently wrong with an employee waiting to be told what to do. Certainly, Ms. Otto displayed a lack of initiative, but this could be due to a lack of training in these new areas of responsibility. The most empirical testimony presented regarding Ms. Otto was that of her attendance at the Regional Planning Council. A scheduled breakdown of her absences, both with permission, without permission and unexplained was presented at this hearing. A chart, plus leave records were admitted as Counsel's Exhibit No. 5, which broke down Ms. Otto's attendance between April 5 and May 14, 1976. This exhibit was prepared by compiling the leave records and other notes kept by the staff of the Council with regard to Ms. Otto's attendance at the Council office. A compilation of approved and unapporved leave slips was taken from the records of that Council which was noted on the first page of Exhibit No. 5. Also, records kept by the receptionist as to Ms. Otto's. attendance were used to determine her "hours out of office." The remainder of the time unaccounted for by approved or unapproved leave slips completed the category captioned "No leave slip" which appears on the first page of this exhibit. The policy of the Regional Planning Council was that employees were requested to advise the receptionist where they were going upon leaving the office during working hours or where they would be if they would be coming in late. In this fashion, employees' whereabouts could be accounted for. This policy was not in any written form, but was an "understanding among the employees." It was apparently a practice that was generally followed by all Council employees. Actually, therefore, the hours captioned "No leave slip" indicates more accurately time Ms. Otto spent out of the office which was not specifically accounted for. It is entirely conceivable for all of the 36 1/2 hours listed for her in this category that she was out of the office on official business and merely did not advise the receptionist where she was going. No affirmative evidence was presented that Ms. Otto actually did not spend any of this time in an official capacity. Furthermore, there was no question that Ms. Otto was a professional employee of the Council and it would be unrealistic to expect a professional employee of the Council to work a time clock type schedule, particularly in view of the evidence that Ms. Otto spent considerable amounts of time at home and after hours and on weekends devoted to Council work. It is true that Ms. Otto apparently took 17 1/2 hours leave which was not approved by Mr. Peterson, her supervisor. However, with regard to the practice of Mr. Peterson in approving and not approving leave, testimony was clear that he routinely approved requests by all employees. What the evidence against Ms. Otto in this regard boils down to is that she neglected to get advance approval for leave during this period of time, which approval would customarily had been given. Had the Council thought this to be a serious infraction at the time, it appears certain that Ms. Otto would have been confronted with questions about her attendance and leave and been advised that she must more strictly account for her time and follow customary procedures in taking leave. However, this was not done and apparently the first Ms. Otto heard that there were questions about her attendance was when he was given a statement from the Council advising her of the reasons she was fired. On Ms. Otto's behalf several former employees of the Council testified that they found her performance at the Regional Planning Council to be an inspiration and a model of efficiency and administration. Ms. Otto on several occasions worked long hours, weekends and evenings on particular projects she was assigned and apparently did an extremely satisfactory job. Several employees stated that she was extremely helpful to them, displayed initiative and a very cooperative attitude.
Recommendation It is the finding of this Hearing Officer that the Respondent, South Florida Regional Planning Council, has failed to present by clear and convincing evidence that the Petitioner, Joan Otto, was fired for good cause. It is therefore RECOMMENDED that she be reinstated to her former position with back pay. DONE and ORDERED this 30th day of August, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Myron Gold, Esquire 4651 Ponce de Leon Boulevard Coral Gables, Florida 33146 Allan Milledge, Esquire Milledge, Horn & Hermelee 2699 South Bayshore Drive Miami, Florida 33133 ================================================================= AGENCY FINAL ORDER ================================================================= SOUTH FLORIDA REGIONAL PLANNING COUNCIL IN RE: DISMISSAL OF JOAN OTTO, CASE NO. 76-1337 /
The Issue Whether the Petition for Relief from an unlawful employment practice was timely-filed, and if it was not timely-filed, is this cause barred?
Findings Of Fact Petitioner filed an undated Charge of Discrimination on the basis of "race and "age" with the Florida Commission on Human Relations (Commission). On June 21, 2000, the Commission issued its Notice of Determination: No Cause and mailed a copy thereof to Petitioner. Petitioner was required by Section 760.11(7), Florida Statutes, to request a formal hearing "within 35 days of the date of determination" of no reasonable cause, failing which the claim would be barred and the complaint dismissed. The Commission notified Petitioner of this 35-day deadline in its Notice of Determination: No Cause served on Petitioner on June 21, 2000. 5. Rules 60Y-5.004(5) and 60Y-4.007(2), Florida Administrative Code, provide that the Petition for Relief must be filed within 33 days of the date of a No-cause Determination which is served on a complainant by mail. The thirty-third day following the June 21, 2000, issuance of the No-cause Determination expired on Monday, July 24, 2000. The thirty-fifth day following the June 21, 2000, issuance of the No-cause Determination expired on Wednesday, July 26, 2000. The Petition for Relief was postmarked July 31, 2000, which is five days after expiration of the statutory filing deadline. The Petition was stamped-in by the Commission Clerk on Tuesday, August 1, 2000, which is six days after the statutory filing deadline. The certified copy of the Petition stamped-in by the Commission and its post-marked envelope show that the Petition for Relief was not timely-filed with the Clerk of the Commission. There has been no affirmative showing of excusable neglect by Petitioner.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 20th day of October, 2000. COPIES FURNISHED: James J. Dean, Esquire Ricky Polston, Esquire Polston & Dean, P.A. 106 East College Street Suite 900, Highpoint Center Tallahassee, Florida 32302-1836 Bobbi Debose 1129 Northeast 24th Street Gainesville, Florida 32641 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
