Findings Of Fact Rebecca K. Seip's epilepsy was diagnosed, in August of 1989. Dilantin was prescribed. The following January she began working for respondent as a disc jockey at the "country radio station in Destin" (T.12) respondent once operated, but has since supposedly sold. In the course of a job interview, Ms. Seip had told Daniel "Skip" Davis, then the station's program director, "I don't know that this will make any difference to you in hiring me . . . but I have a seizure disorder." T.11. She "explained . . . that was one of the reasons [she] needed a day job." Id. Because Dr. Mack D. Jones, who diagnosed her condition, had told her "how detrimental it was to work a night shift and have your body off," (T.10) she gladly accepted respondent's offer to work from ten o'clock mornings to five o'clock afternoons (ten to three on the air), and gave up the job she had on a night shift at another station. Three months after she began working for respondent, she became eligible for health insurance, under company policy. When the company's insurance agent reportedly declined to include her on a group policy, she was informed "that Pat Cobb, who was the [respondent's] business manager, asked him to please try to find some kind of coverage we could get." T.28. After working days for respondent for approximately six months, Ms. Seip was directed to report at five o'clock afternoons, and work till midnight (six to midnight on the air) Monday through Friday; her "shift on Sunday was noon to six." T.33. Before the schedule change took effect, she protested to Perry L. "Gabby" Bruce, who had become the radio station's general manager, replacing Edna Smith, who continued in respondent's employ as its "finance officer." Dr. Jones had directed her not to work night shifts, since the "seizure risk is increased." T.11. In response to an oral report of her medical condition, Mr. Bruce asked if she had anything from a doctor that would corroborate her account. Declining to rescind the schedule change, he said, "Well, you know, there is really nothing I can do. . . . Don't worry if you have a seizure. . . . It is not going to affect your job." T.15. On July 23, 1990, Ms. Seip procured a handwritten note Dr. Jones apparently wrote on one of his prescription forms: Please don't have Ms. Seip work nite shift. This will increase her seizure risk. She needs normal nights sleep. Petitioner's Exhibit No. 1. Ms. Seip left the note in Mr. Davis' basket or "in box." By this time, she had begun night shifts. At least twice respondent required her to work day shifts that began six hours after she had finished night shifts. Interspersed among her routine night shifts were other day shift assignments, when illness or other cause made the disc jockeys regularly assigned unavailable. Not only her sleep patterns but also her eating habits suffered. She lost 20 pounds while working night shifts for respondent. After the scheduling change in mid-July, she had occasional seizures even when she worked days. Some of these seizures amounted to no more than the "shakes" and nausea. All of her "more severe" (T.39) seizures occurred after the scheduling change, however. Other people at the radio station, including Penny Austin, the receptionist, Pat Cobb, the business manager, Mr. Davis, Ms. Smith and Steve Williams, a disc jockey, saw the daytime episodes. When she had a seizure during a day shift (after the change to night shifts), fellow employees laid her on the couch in Mr. Bruce's office, and told him what had happened when he returned from lunch. One night, alone at the radio station, she telephoned her sister for help (reaching her after twice misdialing). With difficulty Debra Ann Seip elicited the program director's telephone number; and called him. By the time the person Mr. Davis dispatched reached the station, she found Rebecca incapacitated. The music had stopped. Scott Brown, the disc jockey who ordinarily relieved her at midnight eventually took over. Repeated requests to return to a day shift having been refused or ignored, Ms. Seip filed a complaint with the Florida Commission on Human Relations in October of 1990. When he learned of this, Mr. Davis told her she "had opened up a whole can of worms, and if [she] wanted a gun fight that [she] had one." T.40. In the spring of 1991, while Ms. Seip was home recovering from an automobile accident, she received a "letter from Gabby Bruce, telling [her] she needed to come in and talk to Skip about the new schedule change " T.41 At the time, she had been away from work approximately two weeks. When she spoke to Mr. Davis, he told her that respondent was "going to be using a satellite system that would" (T.44) eliminate the need for disc jockeys between six o'clock in the evening and six o'clock in the morning, and that she no longer had a job. Mr. Davis told her they planned to use satellite programming at night beginning in two weeks. Ms. Seip understood that respondent planned eventually to eliminate "all the weekend positions as well." T.51. As it turned out, respondent's "satellite programming didn't go on until the following January full time" (T.44) and disc jockeys were needed at night, at least through the end of 1991. Respondent first "split the shift up between [three] part timers [two of whom had less seniority than Ms. Seip] . . . [then a]fter a month or two . . . put somebody back in [what had been her] position." T.46. Ms. Seip's replacement was a woman, one of three new hires in the five months following her departure. Ms. Seip was unable to find work in her field at the radio stations to which she applied in the vicinity. News of her having sought relief from the FCHR spread. Eventually Ms. Seip moved to Nashville, Tennessee, and found work there. Lost wages on account of her termination, offset by earnings from odd jobs before she found work that paid as much as or more than she earned working for respondent amounted to $14,000.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE AND ENTERED this 13th day of July, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of July, 1993. COPIES FURNISHED: Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Mark Evan Frederick, Esquire P.O. Box 385 Destin, FL 32540 Perry L. Bruce General Manager Gulfcoast Broadcasting, Inc. P.O. Box 817 Destin, FL 32541 Rebecca K. Seip 1205 B. Holly Street Nashville, FL 37206
Findings Of Fact On May 20, 1989, Respondent was employed as a radio teletype operator with the Bureau of Registration Services, Division of Motor Vehicles, a division of the State of Florida, Department of Highway Safety and Motor Vehicles. He had held that position for approximately four years and nine months. Respondent's duty shift was from 12:00 a.m. to 8:00 a.m. His days off were Thursday and Friday. He had held this shift assignment since 1987. Respondent had another employment position at Florida State University, a day shift that ran from 8:00 a.m. to 5:00 p.m., Monday through Friday. The equipment which Respondent operated for the Petitioner was linked to the Florida Department of Law Enforcement and was part of the Florida Criminal Information Center. Given this affiliation, it was necessary for the Respondent to maintain his qualification to operate the terminal. That qualification was through a certification process. To this end Respondent had undergone training on May 2 and 3, 1989, through the Florida Department of Law Enforcement, to include a test to ascertain his skills. He failed to pass that test. Thus, he was not certified. As a consequence of Respondent's failure to obtain a satisfactory score on the certification examination to continue as a teletype operator on the Florida Criminal Information Center equipment, a letter was written from the Florida Department of Law Enforcement to Jeanette Spooner, Respondent's immediate supervisor. A copy of that correspondence may be found as Petitioner's Exhibit No. 1 admitted into evidence. Through the correspondence Patrick J. Doyle, Director, Division of Criminal Justice Information Systems for the Florida Department of Law Enforcement explained to Ms. Spooner that terminal operators who did not pass the examination, Respondent among them, could not continue operating the Florida Criminal Justice Information Center terminal until an minimum test score of 70 had been obtained. It was suggested in this correspondence that the arrangements be made to allow the operators who had failed to attend the next regularly scheduled training class. This letter is dated May 18, 1989. Ms. Spooner, whose job title has been identified in the Preliminary Statement, works from 8:00 a.m. to 4:30 p.m., Monday through Friday. She is on call weekends and holidays and after hours by contact through a beeper system. As a consequence, she was not in attendance when Respondent arrived for his midnight shift on Saturday, May 20, 1989. The midnight shift has one operator on duty with a float person being available for relief. The float operator also is available to work days. The primary operator on the midnight shift on May 20, 1989 would ordinarily have been the Respondent. Given that Ms. Spooner was not at work when Respondent arrived for his next duty shift beyond the notification that he had failed the certification examination, other arrangements were made by the Petitioner to confront this dilemma. These arrangements were made through a conversation between Mr. Pelham, whose job title with the Petitioner is identified in the Preliminary Statement, and a Ken Wilson who is a personnel official within the Petitioner's Department. Wilson devised a set of options that could be made available to the Respondent in view of his inability to function in his normal position of radio teletype operator. Those options may be found in Petitioner's Exhibit No. 2 admitted into evidence. They were: Transfer to day shift (8:00 a.m. 4:30 p.m.) and work in class other than teletype. Take annual leave and comp. leave until after next class by FDLE on July 13th and 14th 1989. Take leave of absence until FCICV test is passed. Transfer into another position of like pay grade either day shift or night shift. The options were then given from Pelham to Spooner, with a copy prepared to be provided to the Respondent along with a copy of the May 18, 1989 letter from Mr. Doyle. Spooner spoke to the Respondent on the telephone at 12:15 a.m. on May 20, 1989, after Respondent had clocked in for his duty shift at 12:03 a.m. on that date. In the course of this conversation, Spooner told Respondent that he could not operate the terminal and she discussed the options that had been prepared by Mr. Wilson in some depth. She also briefly spoke to Respondent about what the letter of May 18, 1989 said. The circumstance of trying to identify an alternative placement for the Respondent was one in which no equivalent position to radio teletype operator was found within the Bureau that Respondent was employed by. Through the conversation on May 20, 1989, Respondent was told that he needed to go home and read the options and make a decision about which option he wanted. This remark was made because Respondent had asked for a day or so to think about the situation. Ms. Spooner allowed Respondent to take annual leave for May 20 and 21, 1989 and up through May 22, 1989, if need be. On that latter date Respondent was to contact Mr. Pelham and Ms. Kirkland, whose position with the Petitioner's department has been set forth in the Preliminary Statement. Ms. Spooner was not going to be available on May 22, 1989, so she made the arrangements for the Respondent to contact Pelham and Kirkland on that date to explain his choice of the option that he preferred. May 22, 1989, was the first work day that the Respondent could be in contact with Pelham and Kirkland whose duty days did not include the weekend. The Respondent's duty shift was left to the replacement teletype operator. Ms. Spooner did not hear from the Respondent from May 20, 1989 through May 30, 1989. She did talk to him on May 31, 1989, between 10:00 a.m. and 11:00 a.m. Respondent appeared at the offices of the Petitioner to pick up his check. Ms. Spooner asked Respondent to wait a moment while she went to get Ms. Kirkland and told Respondent Ms. Kirkland needed to speak to him. When she got to Ms. Kirkland's office, Ms. Kirkland was on the telephone and Ms. Spooner waited for that conversation to be concluded before going back to speak to the Respondent. This took between 5 and 10 minutes. When she arrived back at her office, the Respondent had departed. He left a note for her, a copy of which may be found as Petitioner's Exhibit No. 4 in which he says: "Mrs. S I had to leave I'm sorry!!! I'll contact you today from the office." Respondent did not call her back as his note envisioned. To be absent from his duty assignment it was necessary for Respondent to contact Ms. Spooner in advance and if he were not going to be able to meet one of his shift requirements he had to give four hours notice to obtain a substitute operator. Respondent never asked Ms. Spooner for leave of any kind following the discussion of May 20, 1989. On May 22, 1989, Ms. Spooner had spoken to Ms. Kirkland by telephone and Ms. Spooner relayed the details of her conversation with the Respondent which took place on May 20, 1989. Around 10:00 a.m. on May 22, 1989, Kirkland, Pelham and Respondent met in Pelham's office to discuss Respondent's employment situation. In that discussion the May 18, 1989 letter was discussed and it was made clear to the Respondent that he could not be left in his position as radio teletype operator at present and that he could not return to that assignment until another class of instruction had been conducted in July, 1989. Respondent was told that he could do day clerical work somewhere within the Bureau that he was employed by with the same pay status that he had. It was emphasized that the teletype operation had to be covered, taken to mean by a certified employee. Respondent asked if he could work night clerical and was told that there were no night clerical positions available. Respondent mentioned the fact of his day time employment at Florida State University. Respondent was told that he could take annual leave, compensatory leave or a leave of absence until he went back to his position as teletype operator. The possibility was discussed of a transfer to a like pay position other than a clerical position and the existence of a vacancy in the tag office was discussed. This was a Senior Clerk position of the same pay grade as Respondent's current position. Respondent said that he would have to think about the situation and get with his supervisor at Florida State University. In the discussion of May 22, 1989, Respondent indicated that he did not like the option of working a morning job because it caused problems with his Florida State University position. Although his supervisors with the Petitioner were not sure of the details, it was remarked that the Respondent might consider a position with a Bureau within the Florida Highway Patrol, to which Respondent shook his head. Mr. Pelham told Respondent that he should think about his options the rest of the day and that he should contact Ms. Kirkland that day about the option the Respondent favored. The Respondent said it may take a little time to make the choice. Ms. Kirkland told Respondent that he should make sure to call her on May 22, 1989, or the first thing the following day and let her know his decision, because the Department would expect him to start in the morning at a new position if that were his choice. Respondent's claim that a deadline for decision was not given is rejected. Respondent stated that "If I have a problem I'll get back with you I'll let you hear from me." When the discussion was being held on May 22, 1989, Respondent had the options form and a copy of the letter of May 18, 1989, and he left the conference room with those items. This meeting lasted for approximately 30 to 45 minutes. During the course of that meeting Respondent did not ask for any form of leave or otherwise express his preference at any time contrary to his assertion that he had asked Ms. Spooner to calculate his annual and compensatory leave balances. Neither Ms. Kirkland nor Mr. Pelham heard from the Respondent between May 23 and May 30, 1989. Respondent did not report to a day shift, which shift would have had a work cycle of Monday through Friday with the weekends off, nor did he return to his duties as a teletype operator which had days off on Thursday and Friday. If he had elected to do the day shift work his duty days beyond the May 22, 1989 meeting would have been May 23-26, 1989, and May 29-31, 1989. The night shift would have been duty days on May 23 and 24, 1989 and May 27 - May 31, 1989. When Respondent did not confirm his choice of options, Mr. Pelham tried to make telephone contact with him at 9:30 a.m., 11:00 a.m., and 3:00 p.m. on May 26, 1989, at his employment at Florida State University and left messages on each occasion. Respondent did not return those calls. Had Respondent elected to go to a day shift position that change would have been placed in writing. No election having been made, it has not confirmed in writing. When the agency did not hear from the Respondent about his choice, it took action on May 30, 1989 noticing the Respondent of its intent to find that he had abandoned his position. The abandonment letter was dated May 30, 1989. It sets forth that the work days that Respondent did not attend were May 23-26, 1989. It contemplates the day schedule. As described before, whether Respondent is seen as having continued to operate on a night schedule or to have moved over to a day schedule, both being choices that he remained silent about, he still failed to appear at his duty assignment for more than three consecutive days. After dispatching the letter of abandonment on May 30, 1989, Respondent made known his intent to appeal the decision of the Petitioner. This point of view was expressed on June 7, 1989.
Recommendation Based upon the findings of facts, conclusions of law, it is, RECOMMENDED: That a Final Order be entered which fines that Lamichael Proctor has abandoned his position as a radio teletype operator with the State of Florida, Department of Highway Safety and Motor Vehicles. DONE and ENTERED this 9th day of November, 1989, 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 9th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3756 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Petitioner's facts are subordinate to the facts found in the recommended order. Respondents's Facts Paragraphs 1 and 2 are subordinate to the facts found. The first sentence to Paragraph 3 is subordinate to facts found. The remaining sentences in Paragraph 3 are contrary to facts found. Paragraph 4 is subordinate to facts found with the exception that Petitioner's Exhibit No. 2 admitted into evidence in its fourth option discussed not only a night shift transfer but a day shift transfer as well. Paragraph 5 is confusing in its second sentence where it suggests that the Respondent resumed his work shift on Saturday following a Thursday and Friday off, which would correspond to Thursday and Friday being May 25 and 26, 1989 and Saturday being May 27, 1989. If this is truly the contention of the Respondent, it is an erroneous statement because Respondent did not report for work on Saturday, May 27, 1989. Where it is suggested in this paragraph that the Respondent was not scheduled to work on Thursday, May 25 and Friday, May 26, 1989, that assumes a night shift. If he was seen as working a day shift those days should have been the days that he should have been in attendance at his employment. In any event, under the interpretation that he was a day employee or night employee he has abandoned his job position. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Lamichael Proctor 1233 Cross Creek Way Apartment A Tallahassee, Florida 32301 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Larry D. Scott, Esquire Department of Administration Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, John R. Esteves, Jr., who is twenty-five years old, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work in a position of special trust with Respondent, Department of Juvenile Justice (DJJ). Respondent is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision made on November 2, 1999, a DJJ committee denied the request on the grounds that Petitioner had twice been arrested for similar felonies; his answers to the committee's questions were vague; and he would not accept responsibility for his actions. From November 11, 1998 until October 10, 1999, Petitioner was employed as a youth counselor at Cypress Creek Academy, a contracted DJJ juvenile facility in LeCanto, Florida. Because a juvenile counselor works with persons between the ages of thirteen and twenty, and is considered a position of special trust, a background screening of Petitioner was made. The screening revealed that on November 13, 1992, when he was seventeen years old, Petitioner had been arrested by the New York City Police Department on four charges, including armed robbery and criminal possession of stolen property (an automobile) totaling more than $3,000.00. As the result of a plea bargain in which he was found to be a youthful offender, on June 2, 1993, Petitioner was adjudicated guilty of second degree robbery, a felony, and the remaining charges were dismissed. He was placed on five years' probation and required to make restitution, but probation was actually terminated approximately three years later. The case was then sealed. The background check also indicated that Petitioner was arrested in December 1996 in Citrus County, Florida, for attempted armed robbery, a felony. However, after Petitioner successfully completed a pre-trial intervention program, including three months' probation, the felony charge was nolle prossed by the state attorney's office on February 3, 1998. In explaining the circumstances of his first arrest, Petitioner was extremely vague as to the details of the incident, and he would not accept responsibility for his actions. Rather, he placed the blame on other persons riding in the stolen car, and claimed that he did not know that the car was stolen, or that an attempted robbery had occurred. As to the 1996 arrest, Petitioner again was vague as to the nature and disposition of the charges, which stemmed from his attendance at a party, and he claimed that he was mistakenly identified from a photograph by law enforcement officers. Although he was trained as a barber, since being terminated from the juvenile facility, Petitioner has worked at Wal-Mart. He has a six-year-old daughter, is about to be married, and desires to return to work with youthful offenders who he believes can benefit from his life experiences. According to his father, a retired New York City detective who works at the same DJJ facility, Petitioner has a "good rapport" with the kids, is respected by the kids, and is simply trying to "improve himself" if he can be given another opportunity. Eight letters of recommendation from friends, co-workers, and a DJJ program administrator corroborate these assertions. Given the foregoing considerations, it is found that Petitioner poses no threat to juveniles through continued employment at a DJJ facility. However, by Petitioner's being extremely vague regarding the circumstances surrounding his two arrests, refusing to accept responsibility for his actions, and minimizing the seriousness of his offenses, his testimony raises sufficient doubt as to whether he is truly rehabilitated at this time. Accordingly, the evidence is less than clear and convincing that the statutory criteria have been satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 John R. Esteves, Jr. 1379 East Tradewind Drive Hernando, Florida 34442 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Petitioner was unlawfully discriminated against by Respondent, based on his disability, in violation of chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"); and, if so, what is the appropriate remedy?
Findings Of Fact From October 2 through December 7, 2017, Petitioner was employed by the City as a PES in its Transportation and Mobility Department ("TAM"). Nature of the Parking Enforcement Specialist Job The role of a PES is to ensure that members of the public follow the City's parking ordinances and regulations. Job duties include patrolling an assigned area in a vehicle or on foot, inspecting for parking violations, issuing summonses and tickets to violators, and assisting the public by answering questions. A PES must be able to work independently with little or no supervisory assistance and deal courteously and fairly with the public. The PES position is governed by the Collective Bargaining Agreement ("CBA") between the City and the Teamsters' Union. Under the CBA, assignment of work shifts is based on seniority. A PES may be assigned to work night and weekend shifts. Before being assigned a shift to work alone, a newly- hired PES participates in two phases of training. Phase one consists of familiarization with equipment, systems, parking ordinances and regulations, and typically lasts four to six weeks. Phase two is focused on hands-on training and a trainee is given more opportunity to operate the vehicles and equipment. One of the purposes of phase two is to ensure that the trainee is able to appropriately handle problems and stressful situations that may arise on the job, such as dealing with irate members of the public while immobilizing a vehicle. Each phase of training is conducted by a fellow PES who is temporarily designated as a training officer under the CBA. A PES serving in the temporary designation of training officer is not considered a supervisor. The City issues each PES certain take-home equipment, including a public safety police radio, keys, flashlight, and identification card, for use while on the job. A PES takes these items home when not on the job and is at all times responsible for his or her City-issued equipment. To perform the job, a PES is also required to use a License Plate Reader ("LPR") and related systems. A LPR scans license plates and indicates when a car should be issued a citation or boot. A PES is expected to drive a City vehicle and view the screens of the machine that alert when the camera scans a vehicle with outstanding citations. When a LPR alerts a PES of a vehicle with outstanding citations, the PES must carefully pull over and turn on the caution lights to advise oncoming traffic of the stopped City vehicle. Once safely pulled over, the PES may then check whether the vehicle has outstanding citations and issue tickets. The City's Policies and Work Rules Prior to commencing employment at the City, each newly- hired employee is provided with copies of the City's written policies. The City has a Policy Concerning Persons with a Disability and Procedures for Accommodation ("ADA Policy"). It prohibits discrimination against a qualified individual because of his or her disability and states that the City will provide reasonable accommodation when necessary. It also explains the procedures for requesting accommodation and that a request may be made by contacting the City's Office of Professional Standards ("OPS"). OPS handles requests for workplace accommodation and determines whether an accommodation will be provided. On September 27, 2017, Petitioner was given a copy of the City's ADA Policy and executed a form acknowledging receipt of same. At no time during his employment did Petitioner indicate that he was a qualified individual with a disability or that he needed an accommodation for a disability or handicap from the City. In fact, at final hearing, Petitioner admitted he did not believe he had a handicap or needed an accommodation to perform his role as a PES. The City has General Employees' Work Rules ("General Work Rules"), which define Major Rule violations. Leaving the City premises during work hours without a supervisor's permission is listed as a Major Rule violation for which any employee can be discharged immediately without warning. All newly-hired employees at the City receive training on the City's General Work Rules. Each Department is required to post the City's General Work Rules in work areas. TAM posts the City's General Work Rules document in the main security office, which is where PESs check out their parking enforcement equipment and pick up the keys to their vehicles. On September 27, 2017, Petitioner was given a copy of the City's General Work Rules and executed a form acknowledging its receipt. Petitioner's Employment with PES Effective October 2, 2017, Petitioner commenced employment at the City as a probationary PES. Parking Enforcement Supervisor Bryan Greene ("Mr. Greene") was involved in the process of interviewing and hiring Petitioner for the PES position. When Mr. Greene initially contacted Petitioner to set up an interview, he asked if Petitioner would need any accommodation. Petitioner stated that he did not need any accommodation. Petitioner never told Mr. Greene that he had a disability or needed an accommodation to perform the job. Mr. Greene was not aware that Petitioner self-identified as a disabled veteran on his job application with the City. For phase one of training, Petitioner was assigned to train on the day shift. For phase two, Petitioner was assigned to train on the night-shift with fellow PES and training officer, Stephanie Sanchez ("Ms. Sanchez"). Petitioner began his night-shift training with Ms. Sanchez in November 2017. Acting Parking Shift Coordinator Jose Vazquez ("Mr. Vazquez") was the immediate supervisor of Petitioner and Ms. Sanchez. Mr. Vazquez's immediate supervisor was Mr. Greene. In the day-to-day performance of his job, Petitioner could communicate with Mr. Vazquez by phone or e-mail. Petitioner never told Mr. Vazquez or his coworker trainers that he had a disability or needed any accommodation. From time to time, Mr. Vazquez would check in with Petitioner on his progress as a regular part of the training process. Petitioner never reported any problems with Ms. Sanchez to Mr. Vazquez or Mr. Greene. On December 6, 2017, Mr. Vazquez sent Petitioner a series of routine e-mails regarding the status of various equipment and training. In one of his e-mails, Mr. Vazquez asked Petitioner if he felt comfortable with enforcement operations and procedures and to let him know if there was anything he was uncertain about. Petitioner sent a response stating, in relevant part, "Thanks Jose, I am comfortable with enforcement. Would like a little more training with the LPR and the different computer programs used in the field." Petitioner did not request to review anything else as part of training. Events Leading to Petitioner's Termination On December 7, 2017, at 12:30 p.m., Mr. Vazquez forwarded Petitioner's e-mail to Ms. Sanchez in reference to training. He instructed her to go over the LPR process and how it works with Petitioner again and told her to "[l]et him drive and control everything so that he gets a feel of it" and "[h]ave him input manual tags too so that he is aware that the LPR will not read all tags." On December 7, 2017, at 5:00 p.m., Petitioner started his shift. Ms. Sanchez let Petitioner drive the City vehicle in the parking garage while she sat in the back. They stopped, parked behind another vehicle, and turned the caution lights on so that Ms. Sanchez could review the LPR process with Petitioner as he had requested. Ms. Sanchez encouraged Petitioner to review his notes on the LPR from the night before and asked him to replicate the process to check if a vehicle was eligible for immobilization. Petitioner became angry that rather than verbally reviewing the instructions over and over with him, Ms. Sanchez directed him to review his notes. Ms. Sanchez explained that she previously had repeated the verbal instruction and wanted to be sure that Petitioner could understand his own notes because he was nearing the end of his training and would soon be on his own with nothing to rely on but his notes. At that point, Petitioner burst out at Ms. Sanchez in a raised voice, "You're aggravating me, I can't stand working with you--you just want me to fail. I'm going home." Sanchez calmly explained that she was trying to help him and reiterated that they would have to go through the steps to learn the process. Petitioner did not listen. He immediately put the City vehicle into drive and sped off to the other side of the garage with Ms. Sanchez still in the vehicle. Petitioner then parked, got out of the vehicle, and went into the main security office with his belongings. Because of Petitioner's outburst and behavior, Ms. Sanchez did not feel that it was safe for her to approach him and waited in the vehicle. After approximately five minutes, Petitioner exited the main security office. He went towards the parking elevator and left. Petitioner left his City-issued take-home equipment, including police radio, keys to access the building, and identification, inside the main security office which was unsecured. Prior to leaving, Petitioner had only been at work for about one hour. Ms. Sanchez immediately contacted Mr. Vazquez. She notified him that Petitioner left work without permission and sent him an e-mail detailing the incident that occurred while training Petitioner on use of LPR systems. Mr. Vazquez advised Mr. Greene of the incident and forwarded him Ms. Sanchez's e-mail. At no time during his December 7, 2017, shift did Petitioner communicate to any supervisor that he was leaving work or not returning that night. Mr. Greene recommended through chain-of-command that Petitioner, as a probationary employee, be terminated from City employment. He felt that Petitioner would not be a good fit for the PES position because he left work without a supervisor's permission in violation of a Major Rule and left his City-issued take-home equipment unattended in an unsecured building. This raised serious safety concerns given the sensitive nature of the equipment, which included a police radio. Additionally, Petitioner's rude, disrespectful, and troubling behavior towards Ms. Sanchez raised concerns as to his ability to appropriately deal with coworkers and members of the public. The City determined that Petitioner voluntarily resigned when he left work without contacting a supervisor and left his City-issued take-home equipment unsecured in the security office. Accordingly, the City accepted Petitioner's voluntary resignation from employment, effective December 7, 2017. Petitioner's Argument Petitioner claims that he had no intention of resigning and that his separation from employment was a termination based upon his disability or handicap. Petitioner believes that his training by Ms. Sanchez should have conformed to his preference on how to learn (repeated verbal instructions without reference to notes or the guide book) and that he was justifiably upset with her. Petitioner explained that his interaction with Ms. Sanchez triggered intestinal distress, necessitating his need to go home and change clothing. He intended to return to work that night but claims he saw an e-mail from management that if Petitioner returned to work, he was to be told to go back home. Petitioner was not copied on that e-mail nor could he explain at final hearing how he saw that e-mail prior to the initiation of his administrative complaint. Petitioner's testimony on this point is not credible. Further, Petitioner admits he did not contact a supervisor prior to leaving his shift. Despite receiving and reviewing the General Work Rules, Petitioner irrationally assumed it was management's responsibility to reach out to him to find out what was going on, rather than him requesting time off. After going home, Petitioner made no effort that evening to contact a supervisor to explain why he left the job. Petitioner's suggestion, that leaving his work equipment was not an indication of quitting, is also not credible. Petitioner claims that he left the keys and equipment in what he believed was his own mailbox, assumed no one would touch it, and that the building was secure. Petitioner cross- examined the City witnesses at final hearing in detail about where his equipment was actually left (on a desk or in his mailbox) but, ultimately, he provided no rational explanation why he left everything in an unsecured building on December 7, 2017, when after every other shift, he previously took those things home. Petitioner did not identify any handicap or disability either while employed with the City or at final hearing. Nor did he request any accommodation that would have enabled him to perform the essential functions of the PES job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the FCHR Petition 2018- 04710. DONE AND ENTERED this 13th day of May, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 13th day of May, 2019.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered sustaining the revocation of furlough on the grounds that respondent violated the terms of his Furlough Agreement. Respectfully submitted and entered this 14th day of October, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 14th day of October, 1982. COPIES FURNISHED: Christopher Cobb Post Office Box 490 Arthur G. Dozier School Marianna, Florida 32446 Julia Cobb 1527 Lancelot Loop Tampa, Florida 33619 Amelia M. Park, Esquire District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether G4S Secure Solutions f/k/a The Wackenhut Corporation (Respondent or G4S) discriminated against Keith A. Galloway (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509, Florida Statutes,2/ and if so, what is the appropriate remedy.
Findings Of Fact G4S is a company that provides security services to businesses and governments. Infrastructure Corporation of America (ICA) contracts with the State of Florida Department of Transportation (DOT), for asset management of DOT's rest stops along interstate highways in Florida. Pursuant to a subcontract with ICA, G4S provides security services for DOT rest stops managed by ICA. ICA is one of the largest clients of G4S's office located in Pensacola, Florida. G4S has more than 600,000 employees. G4S's Pensacola office employs approximately 200 security officers. Security services provided by G4S's Pensacola office include nine locations for ICA, and approximately 25 non-ICA locations, including resorts, hospitals, and at least one shopping center. Petitioner was employed by G4S from 2005 to 2008, and again from 2009 to October 2010. Although Petitioner has not done any work for G4S since October 2010, G4S's Pensacola office still considers Petitioner to be an employee. In 2008, Petitioner left the employ of G4S to take a job as a police officer in the State of Alabama. As a result of an injury received while working in that capacity, Petitioner had part of his leg amputated in December, 2008. Petitioner also has diabetes, which may have contributed to the severity of his injury. As a result, Petitioner now wears a prosthetic leg, can only walk short distances, and cannot climb. Petitioner also had part of his foot on his other leg amputated. Unable to return to work for the police department in Alabama, Petitioner applied for and, in 2009, was once again hired by G4S. Upon his re-hire, Petitioner was assigned to work as a security guard at an ICA site in Florida, the Ponce de Leon rest stop along Interstate 10. G4S's job description for Petitioner's position as a rest stop security guard lists the position title as “Custom Protection Officer.” The activities and corresponding estimated time spent performing each activity are listed in the “Safety, Exertion, and General Ergonomics” portion of the job description as follows: Using a computer, 25% Using a telephone, 25% Sitting, 50% Standing, 50% Walking, 50% Reaching, 15% Listening, 50% Stooping, 15% Climbing, 15% Kneeling, 10% Speaking, 50% Observing, 100% Lifting objects over 10 pounds, 15% Running, 2.5% Writing, 50% Working outdoors, 50% Working indoors, 0% Working in confined spaces as defined by OSHA, 0% Working in extreme temperatures, 25% Although walking is listed as a 50 percent activity in the ergonomics section of the job description, the “Nature of Specific Duties Performed” section of the job description estimates that only 30 percent of a security guard's time will be spent performing “security patrols of designated areas on foot or in vehicle.” (emphasis added). While Petitioner was working for G4S at the Ponce de Leon rest stop, it was common knowledge among Petitioner's co- workers and supervisors that Petitioner had a prosthetic leg. When Petitioner began working at the Ponce de Leon rest stop, Petitioner advised his supervisor that he had a prosthetic leg and had trouble walking.3/ Petitioner?s immediate supervisor, a lieutenant with G4S, and the lieutenant's supervisor, a project manager with G4S over the ICA account, were aware of Petitioner?s prosthetic leg and his limited walking ability. They allowed Petitioner to use his personal vehicle as an accommodation. Although Petitioner walked on occasion, most of his patrol at the rest stop was accomplished using his personal vehicle. With that accommodation, Petitioner was able to satisfactorily perform the essential functions of his job. During the same time period that Petitioner was working at the Ponce de Leon rest stop, ICA had an employee named Rick Rousseau. Mr. Rousseau was employed by ICA as a senior wastewater operator with responsibilities over the water testing, water and wastewater plants, and lift stations at the Interstate 10 rest stops between mile marker 96 in Holmes County, Florida, and mile marker 194 in Leon County, Florida. Mr. Rousseau was formerly an inmate incarcerated in Holmes Correctional Institution, Holmes County, Florida. Several of the G4S security guards assigned to the rest stops where Mr. Rousseau had responsibilities had been guards at Holmes Correctional Institution while Mr. Rousseau was incarcerated there. They remembered Mr. Rousseau and, apparently, he remembered them. Part of the contract between ICA and DOT required ICA to inspect the G4S security officers. ICA project manager Joseph Mastro did some of those inspections himself, including routine, announced inspections, as well as surprise inspections. Mr. Mastro authorized Mr. Rousseau and other ICA employees, as part of their duties, to observe and report whether the G4S security officers were doing their jobs at the rest stops. In fulfilling this role, Mr. Rousseau would often sneak up on G4S security officers in the dark to see whether they were sleeping, take pictures, and shine his flashlight at the officers and into their vehicles. These activities caused friction between the G4S security officers and Mr. Rousseau, some of whom remembered him from his days as an inmate at Holmes Correctional Institution. Although Petitioner had never been a correctional officer, he was subjected to the same surprise “inspections” conducted by Mr. Rousseau. Petitioner knew that Mr. Rousseau was a former inmate. Petitioner felt as though Mr. Rousseau's activities amounted to “stalking” type behavior and asked a supervisor with G4S for permission to file a complaint against Mr. Rousseau with law enforcement. The supervisor, John Helms, who at the time was a project manager over the G4S account for the ICA interstate highway protection program, gave Petitioner permission to report Mr. Rousseau to law enforcement. As explained by Mr. Helms: The issue with Rick [Rousseau] came to light. [Petitioner] had complained several times on [Rousseau] -- as well as the other guards -- about this stalking and sneaking and lurking activity, and this went on long enough that I believe [Petitioner] finally got fed up with it. We certainly saw this as a safety issue at least. [Petitioner] asked me if he could report this to law enforcement. And, of course, he's a citizen, I can't keep him from reporting anything to law enforcement if he's a victim of crime, so I told him yes. After receiving permission to do so, Petitioner filed a complaint with the Holmes County Sheriff's Office on October 5, 2010, complaining about Mr. Rousseau's stalking behavior. When Mr. Mastro found out that Petitioner had filed an official complaint against Mr. Rousseau, he was upset. He felt as though the G4S security guards had been unfair to Mr. Rousseau because of Mr. Rousseau's past incarceration, and that Mr. Rousseau had just been doing his job. Previously, someone had posted a mug shot of Mr. Rousseau on a security door with a note that stated, “Be on the lookout for.” Although there was no evidence that Petitioner was involved in the posting of Mr. Rousseau's mug shot, Mr. Mastro was sensitive to the issue. He felt as though Petitioner's filing of the complaint against Mr. Rousseau was a violation of Petitioner's chain-of-command. On October 22, Mr. Mastro e-mailed G4S's general manager of the Pensacola office, Patrick Dawson. The e-mail stated: Patrick, After talking with my supervisor, I am requesting that [Petitioner] be REMOVED from ICA's project, effective ASAP. I cannot require you to terminate him but can require for him to be removed. If you wish to talk about this matter please give me a call. We may be able to work something out by moving this officer west to Okaloosa Rest area. After talking to you yesterday this officer did not follow the required chain of command that was sent to ICA in a letter and provided to all officers. Thanks. Mr. Mastro was aware that Petitioner had a disability related to his foot or toes, but was unaware that he could not walk for long distances or that he had been using his truck to patrol the Ponce de Leon rest stop. There is no evidence that Mr. Mastro's request that Petitioner be removed was related to Petitioner's disability. Based upon the client's request, Mr. Dawson decided to remove Petitioner from the ICA account. The decision was not based upon Petitioner's work performance, which was satisfactory. In addition, the evidence does not reasonably suggest that the decision to remove Petitioner from the ICA account was based upon Petitioner's disability. While preparing to go back to work on the Sunday after filing the complaint against Mr. Rousseau, Petitioner received a call from Captain Helms, who advised Petitioner that he was being removed from the rest area. The next day, Jason Taylor contacted Petitioner and told him that he was being removed from the ICA account and would be reassigned. Petitioner asked Mr. Taylor, to no avail, why he could not just be reassigned from the rest stop at Ponce de Leon to the rest stop at Okaloosa. Later that afternoon, Mr. Dawson called Petitioner and told him that he was being taken off the ICA account at Mr. Mastro's request. When Petitioner asked about reassignment, Mr. Dawson said that he believed his reassignment would be to a place where Petitioner would be checking in clients and would have a vehicle to do road patrol. Mr. Dawson did not tell Petitioner that Mr. Mastro had suggested reassignment to the Okaloosa rest stop as a possibility. Mr. Dawson had never met Petitioner before he called him on the telephone to advise that he was being taken off the ICA account. While Mr. Dawson told Petitioner that he believed Petitioner would have use of a vehicle to do road patrol, there is no evidence that Petitioner and Mr. Dawson specifically discussed Petitioner's disability or that Petitioner needed an accommodation because of his disability. According to Mr. Dawson, he did not know of Petitioner's disability when he asked for Petitioner's reassignment. Mr. Dawson, however, did not concern himself with the details of Petitioner's reassignment. Rather, he left those details to Jason Taylor and Theresa Flores. Mr. Dawson told Jason Taylor, operations manager with responsibilities over day-to-day operation for G4S's Pensacola Office, to reassign Petitioner. Mr. Taylor was aware of the fact that there had been problems with Mr. Rousseau. In fact, the first time he met Petitioner during an inspection at the Ponce de Leon rest stop around May 2009, Petitioner informed him of the problems that he and other security officers were having with Mr. Rousseau. Mr. Taylor was also aware that Petitioner had a prosthetic leg. During that same May 2009, inspection, Petitioner showed Mr. Taylor his prosthetic leg. Despite his responsibilities and knowledge of Petitioner's prosthetic leg, Mr. Taylor testified that he was unaware of Petitioner's limitations or the fact that Petitioner had been allowed by his supervisors to use his personal vehicle to make his rounds at the Ponce de Leon rest stop. Mr. Taylor, however, was aware of the requirements of the ADA and agreed that, to the extent that Petitioner could not walk or stand, Petitioner's use of his personal vehicle to make his rounds was a reasonable accommodation. Although Mr. Taylor was aware of Petitioner's prosthetic leg and the requirements of the ADA, he did not play a direct role in selecting Petitioner's reassignment. Rather, he relied on Theresa Flores, a G4S area supervisor under his supervision, to deal with Petitioner's reassignment. When asked whether G4S made reasonable accommodations for Petitioner in his reassignment so that Petitioner could perform the essential functions of the job, Mr. Taylor testified, “That was given to Ms. Theresa Flores and Ms. Flores did that.” Ms. Flores was in charge of payroll and duty assignments for G4S's Pensacola area office. She assisted site supervisors and was directly in charge of schedules and security guards at sites that had no other supervisors. She knew that Petitioner had problems with his leg, but did not know any specifics about his prosthetic leg. She acknowledged that she would have received Petitioner's leave requests, including a medical leave request that Petitioner had previously submitted for surgery on his leg, but she was not “specifically” aware that Petitioner had taken leave for leg surgery. Ms. Flores was not aware of the Rousseau situation. Her involvement in finding a reassignment for Petitioner was based solely on Mr. Taylor's request that she reassign Petitioner to a non-ICA location. At the final hearing, Ms. Flores testified that she had no ADA training. Ms. Flores never talked to Petitioner face-to-face. She did, however, have a basic understanding of the concept of “accommodation” as it relates to disabilities. Ms. Flores recalled a telephone conversation with Petitioner during the time she was looking for reassignments to offer him, in which Petitioner told her he could not walk for a long period of time. Ms. Flores offered Petitioner three positions. She testified: So I first offered him one position, and he turned it down because it was, I believe, too much walking is what I remember. So it was kind of tough at that point, because of the positions at that time required walking, some kind of walking. So I offered him a second position, and the same thing, you know, it was too much walking. Okay. And then I believe this was the last position, Sanctuary by the Sea, and I did tell him it is walking, but to me, it was nothing -- it wasn't too hard. I didn't think it would be too physically hard because it's just walking, you walk at your own pace, you know. It's nothing that I thought would be hard physically on him. So he said okay, I'll give it a try. Indeed, Petitioner accepted the position at Sanctuary by the Sea. He was under the impression that the position would not require much walking. His start date was delayed a day because of car trouble. He showed up for training on the evening of October 28, 2010. In his testimony, Petitioner described what happened that evening: Well, I got out -- I went and parked. He said use -- the guard there said use any parking space, said you'll go down up under the condos and everything to park. I parked there, and he came and got me and we went to the guard shack and everything. I walked in and I got to looking, and I said, dang, you- all got a computer and a TV. He said you ain't got time to do it. I said what do you mean? He said just one round alone is going to take you anywhere from three to four hours to complete. He said you've got to walk this whole facility. I said that's not what they told me. He said, well, someone must have lied to you. He said this whole facility is 33 and a half acres, and he said that is not including going to the beach area and Gulf, you've got to walk the beach. I asked him to specifically tell me what my orders are of what I've got to do. He said it's simple, you've got to walk these grounds here, go to the pool area, walk them, make sure there's nobody down there in the pool that's not supposed to be. I said how do you know that? He said it was pre-sent to you who all has permission to be there. He said your job is that you're going to have to walk the stairwells, and there's five stairwells in this facility, and make sure none of the people have come in through the outside and sleeping in the stairwell. I said okay. He said also you've got to go to each individual condo that is not occupied, and he says you've got to open it up and check it, then you've got to go out to the balcony and make sure there's nobody there, and then you've got to turn around, and he says you've got to climb ladders up to the roof latches. I said what's that for? He said you've got to make sure that nobody has cut the locks off or nobody has broken in through the roof. * * * I went through the training as long as I could, and then my leg gave out on me to where I could not walk anymore. * * * The leg, it had swollen up and it had a split on the corner of where it had split open. * * * I told him [the guard] I'm not going to be able to make this, my leg is gone, I cannot do the work or anything, I cannot walk, I said you need to call Theresa. And he said I agree, and he said I can see that you're in pain right now. We called Theresa and we waited for a response and we never got a response back. I told him I'm going to have to leave, I've got to get this prosthetic off before it swells up to the point where I can't. And when I got home, it was so swollen I had to have my wife literally pull the prosthetic off my leg while I held onto the bed so she wouldn't drag me. Petitioner's testimony was believable and is credited. The next morning, Petitioner spoke to Ms. Flores on the telephone. She told him that she did not have any positions for him that did not require walking. In his testimony, Petitioner explained: I talked to Theresa the next morning. She told me she didn't have anything at that time that I could do and that I was basically useless to her. I told her, I said, well, if you could find something to accommodate me I will take it and everything, but I do have to have overnights and I need something within reasonable driving distance. And that was the last I had any communication with Wackenhut. Consistent with Petitioner's testimony, Ms. Flores's e-mail to Mr. Taylor containing her statement provides in pertinent part: On the night of 10/28, at midnight, I received a missed call from [Petitioner]. I called him back at 10 minutes after midnight with no answer. Immediately after attempting to contact [Petitioner], I received a call from the Officer on duty at the Sanctuary by the Sea. He informed me that [Petitioner] left at midnight and was not going to return. He stated that his reason for leaving was that he was having a hard time walking the property. On Saturday, 10/30, I received a call from [Petitioner], explaining to me what had happened the previous night. He stated that he was having a hard time walking the property, therefore he decided to leave. He also stated he needed to work at a place where he wasn't going to be required to walk. I informed him that almost all of our sites in the Destin area required some walking. The only two positions that required very little walking were at Regatta Bay and Watercolor. I asked him if he would be interested to work at Regatta Bay, being that we had some hours to offer him. He said it was too far. He asked me about Watercolor but there were no openings at Watercolor at the time. At the final hearing, Ms. Flores admitted that Regatta Bay was probably too far away. Mr. Taylor admitted that, in working with Ms. Flores to try to find Petitioner another position, G4S had an obligation to comply with the requirements of ADA and accommodate Petitioner's disability. Mr. Taylor further suggested in his testimony that the job offers made to Petitioner were attempts to accommodate Petitioner. It is clear, however, that they were not. Mr. Taylor admitted that no reasonable accommodation was offered to Petitioner with regard to the position offer at Sanctuary at the Sea. There is otherwise no evidence that Petitioner's disability was accommodated after he was removed from his job at Ponce de Leon. While Mr. Taylor and Mr. Dawson state in their testimonies that Petitioner never requested accommodation, the evidence demonstrates that he did, both prior to and after his removal from his position at the Ponce de Leon rest area. Petitioner's immediate supervisors at Ponce de Leon were aware of Petitioner's disability and allowed him the accommodation of using his private vehicle. Thereafter, Petitioner made it known to Ms. Flores that he could not walk long distances and needed accommodation. The evidence demonstrated that Petitioner's requests for accommodation were ignored. As a result of his attempt to complete his training for the position at Sanctuary by the Sea without accommodation, Petitioner was injured. Without accommodation, Petitioner could not perform the duties of that position or other positions that required a lot of walking. Despite his requests, he was not offered reassignment at locations within reasonable distances where he could perform the duties without much walking or with reasonable accommodation as previously allowed. At the time of the hearing, G4S still had Petitioner listed as an employee and considered Petitioner to be an employee. Although it had knowledge through Petitioner?s supervisors at G4S that Petitioner could satisfactorily perform the essential duties of a rest stop security officer as long as he was allowed to use a vehicle, G4S never again offered Petitioner a position with that accommodation. As a result, Petitioner could not continue to work for G4S and had to seek other employment. On November 8, 2010, Petitioner called the G4S “Employee Concerns Hotline” to complain about the treatment he had received concerning his employment and disability. He later received a call from someone at G4S denying liability, and a follow-up letter from G4S's director of employee relations dated February 14, 2011, thanking Petitioner for utilizing the hotline and stating, “I have been informed that the review of your concern has been concluded and that you have been informed of the subsequent actions.” Approximately two weeks after the night he could not complete his training at Sanctuary by the Sea, Petitioner found part-time work with the Geneva County Sheriff's Office, where he worked until June, 2012. His part-time pay at Geneva County Sheriff's Office was $180.22 per month less than the approximately $1,000 per month he received when last employed at G4S. In addition to his earnings, Petitioner receives Social Security disability benefits. At the final hearing, Petitioner advised that he could not earn more than $1,000 per month and maintain his present level of Social Security benefits. Petitioner also contended at the final hearing that as a result of G4S?s failure to provide reasonable accommodation, he suffered compensatory damages, including medical expenses, mental anguish, pain, and suffering. Relief for those claims, however, is not available in this administrative proceeding. See Conclusions of Law, infra.
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 that Respondent, G4S Secure Solutions, f/k/a The Wackenhut Corporation, discriminated against Petitioner, Keith A. Galloway, in violation of the Act, by failing to accommodate his disability. Ordering Respondent to pay Petitioner $4,595.61 in back pay through the date of this Recommended Order, plus $180.22 per month thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering Respondent to reinstate Petitioner to a part- time position, so that Petitioner can earn approximately, but no more than, $1000 per month, in which he is permitted to use a vehicle to perform the essential functions or his job, or is provided with such other reasonable accommodation that will permit Petitioner to perform the essential functions of the job; failing which, Petitioner shall be entitled to an award of front pay from Respondent, taking into account Petitioner's obligation to mitigate by finding other suitable employment. Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs and a reasonable attorney?s fee. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 30th day of November, 2012.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner and retaliating against him because he complained of racial discrimination.
Findings Of Fact Rogers' claim of racial discrimination in treatment is not supported by the evidence. His claim of a disparity in pay is supported by the fact that the three other shift managers who are not African-Americans earned more than he. In response, however, Calder showed legitimate differences in the qualifications and responsibilities of the shift managers, and that higher compensation for the other three was justified. Circumstantial evidence from which one could draw an inference of retaliatory intent consists of Lang's email and Kaminski's statement that his job was in jeopardy and the email did not help. But Lang's email also addressed legitimate business concerns. In the end, it was his unwillingness to act as a supervisor that caused Rogers to be demoted. (He was fired for insubordination on December 17, 2009, by Otero, the same person who had hired and promoted him.)
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 dismissing the charge of discrimination filed by Petitioner in this case. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 23rd day of December, 2010.
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
