The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on April 8, 1997.
Findings Of Fact 1. At all times material hereto, Petitioner was employed by Respondent, Clerk of Court, Duval County. She was a Clerical Support Aide II until her promotion to Court Records Aide in 1996. Her duties in both positions involved administrative support clerical work, which included cashier functions. 2. The quality of Petitioner's work is not at issue, as Petitioner received satisfactory and above satisfactory evaluations while employed by Respondent. 3. In 1996, Petitioner was under the supervision of Janice Sain in the Traffic Department. Ms. Sain held the position of Assistant to the Clerk. Her responsibilities included overseeing the traffic violations bureau, purchasing department, and the tax deeds department. At the time, Petitioner was assigned to Courtroom 51 which handles first appearances for traffic-related cases, accidents, and misdemeanors. Break Room Incident 4. Employees such as Petitioner would report to work by faxing a daily sign-in sheet each morning showing that the employee was on duty. It was in this manner that Ms. Sain would keep track of whether employees had reported to work from the various branch locations around the city. If an employee was unable to communicate by facsimile, the employee would call in to report that they were at work. 5. On or about November 22, 1996, Petitioner's immediate supervisor, Wanda Myers,’ advised Petitioner that she had not received Petitioner's daily sign-in time sheet. She repeatedly questioned Petitioner regarding the time sheet. Petitioner became nervous and returned to her desk in the cashiering area. Petitioner began shaking and gasping for breath. Petitioner was instructed by Ms. Myers to go into the employees' break room.’ 6. Petitioner believes that a sign which read, "Out of Order" was placed on the outside door of the break room while she was in there. However, there was no evidence presented at hearing to support that belief. The witnesses who were at work that day did not recall seeing a sign on the door. 7. Petitioner filled out a leave request form for sick leave from 3:00 p.m. until 4:30 p.m. Ms. Myers denied that request writing in the comments section, "Denied-told her Janice Sain on way to office to speak with her and told her she could not leave." 8. Ms. Sain was called by Wanda Myers who requested that Sain come to the Traffic Department ("Traffic") as soon as possible to counsel Petitioner. Ms. Sain went to Traffic and spoke to Petitioner. Petitioner filled out another leave slip that afternoon for sick leave from 4:00 p.m. until 4:30 p.m. which was approved by Janice Sain. Ms. Sain wrote in the comment section, "Jarrilyn used her break and went home upset at 3:40." 9. Petitioner called her fiancé, Edward Davis, who met her at her job. Petitioner drove herself home and Mr. Davis followed her. 10. Petitioner later submitted an amended leave request form for the same date and time period but requesting that the leave be designated as worker's compensation. This leave was disapproved as Petitioner's worker's compensation claim was denied and she, therefore, was not entitled to worker's compensation leave. Respondent does not have the authority to approve worker's compensation leave without notification from the worker's compensation office that the claim had been approved. 11. Petitioner sought medical attention on November 25, 1996, three days after the break room incident. The doctor who saw Petitioner wrote a note excusing her from one day's work: "Jarrelyn [sic] is to be excused from work for a period of 1 day and may resume work as of Wed Nov 27, 1996." Petitioner returned to the doctor again on November 27, and December 4, 1996. No documentation was presented as to Petitioner's ability or inability to work as a result of those doctors' appointments. 12. There was no evidence presented that Petitioner was denied sick leave when requested, with the exception of waiting 40 minutes on November 22, 1996. Transfer to University Boulevard Branch Office 13. Petitioner's promotion to Court Records Aide was effective December 9, 1996. On approximately the same date, another employee, Mary Carter, had an accident and broke her back. Ms. Carter had previously been assigned to the Beaches Branch satellite office. Ms. Carter's medical absence led toa rotation of the cashier staff to provide adequate staffing in the various branch offices. Petitioner was transferred to the University Boulevard branch office as a result of this rotation of staff following Ms. Carter's accident and subsequent medical absence. 14. It is common for cashiers employed by Respondent to have varying work locations over a period of time. Assignments for cashiers were subject to change. Respondent tries to provide three to seven days notice to employees on permanent location changes. 15. Respondent's branch offices are physically located within the county Tax Collector's branch offices. Branch offices are also known as satellite offices. The University Center branch office has only one employee (cashier) of Respondent. 16. Petitioner did not provide Respondent with any documentation suggesting that she had medical restrictions relating to her employment duties prior to her transfer to the University Boulevard branch. Lunch Hour at Branch Offices 17. The branch or satellite offices were operated in 1996 from 8:00 a.m. to 5:00 p.m. Employees of Respondent assigned to these branch offices, at that time, did not have a designated lunch period. The times that employees were able to take breaks were determined by the public. That is, sometimes lines of people waiting for assistance would be long. At other times which were less busy, employees took their breaks. Employees at branch offices frequently worked through lunch (as lunchtime was a typical time when the public would come in) and the employees would be paid overtime.* Employees would be given signs to place in their cashier windows for temporary breaks. 18. If an employee had an appointment or needed a designated time period away from the satellite office, Respondent requested that the employee provide advance notice in an effort to facilitate securing a staffing relief. Lorraine Thomas, who is currently a Court Records Aide Senior, would provide lunch relief on occasion to the satellite offices. Ms. Thomas would also provide relief when a clerk was out sick, if the employee's children were sick, or if an employee had doctor's appointments or other personal business. In the case of an emergency, cashiers at the branch office would need to call Traffic for relief. Ms. Sain would often transport employees in an effort to ensure coverage at the branch offices. Despite these efforts, there were times that a branch office would be closed due to being understaffed. 19. At the time of Petitioner's transfer to the University Boulevard office, none of the medical documentation provided by Petitioner to Respondent indicated that Petitioner had medical restrictions regarding her employment. 20. After being advised of the transfer to University Boulevard, Petitioner put in a transfer request dated December 11, 1996. The transfer request was submitted to Gwendolyn Loadholtz, Director of Human Resources. The transfer request states her reason for a transfer was to learn something new. Petitioner also put a check mark next to the word "other" but did not add any further explanation in the space provided. Petitioner did not state any medical reason for the transfer request. 21. Petitioner's doctor signed an Excused Absence from Work form dated December 12, 1996, stating that Petitioner should be excused from work from December 16, 1996, through December 20, 1996. 22. Petitioner's doctor completed a Medically Excused Absence form which stated that Petitioner was under the doctor's care for anxiety and depression, and "it is recommended that she be allowed a daily lunch break." The date of this form is not entirely clear but appears to be January 2, 1997. According to Petitioner, her doctor's office faxed this form to Respondent. Respondent, however, has no record of receiving it. Ms. Loadholtz, Director of Human Resources, testified that she did not receive it and that it was not in Petitioner's personnel file. Ms. Wanda Myers’ last day of employment was January 3, 1997, and there is nothing in the record to indicate whether or not Myers received the doctor's note. In any event, Petitioner wrote a hand-written letter dated January 3, 1997, to "Traffic Management" complaining that she was not getting a lunch hour. 23. Petitioner was treated in the same manner as other employees at the branch offices of Respondent regarding lunch breaks. Petitioner was not the only branch employee without a designated lunch break. 24. On or about January 6, 1997, Petitioner filed a grievance, through her union steward, regarding the lunch break issue. The grievance was resolved in Petitioner's favor. Thereafter, branch employees were afforded a lunch break if they wanted one. 25. Petitioner worked at the University Boulevard branch from December 16, 1996, until January 21, 1997, when her transfer request was granted and she was moved to Misdemeanor "A". Transfer to Misdemeanor "A" 26. Petitioner's doctor wrote a letter dated January 20, 1997, which stated in pertinent part: This is to state that the above named patient has been under my care. She has been diagnosed to have an anxiety disorder that at the present time is exacerbated by the stimulation of having to deal with the public in her place of work. It would be to this individual's advantage, as far as recovering from her present condition, to be placed temporarily in a position in which she would not have to be dealing directly with the public. 27. Petitioner's request for transfer was granted after Respondent received this January 20, 1997, letter from Petitioner's doctor. She was transferred to the Misdemeanor "A" Department effective January 21, 1997. That Department consisted of cashiering, as well as processing violation of probation cases, worthless checks, and processing the Salvation Army payments. Maxine Russell, Senior court Records Clerk, was her supervisor at Misdemeanor "A". Ms. Russell had no knowledge of 10 Petitioner's having a serious medical condition and did not regard her as having a disability. When Ms. Russell became aware of the January 20, 1997, doctor's letter regarding Petitioner, she assigned Petitioner to work at a desk processing payments with minimal contact with the public. 28. Ms. Russell held an initial conference with Petitioner on January 30, 1997, to go over her duties. In a written chronology that Russell maintained during that time period,’ a notation was made on January 21, 1997, that Petitioner volunteered her assistance in helping on the counter and cashiering when necessary. Petitioner's testimony denied that she volunteered but acknowledged that she did on occasion work at the counter when requested. 29. Petitioner received a mid-probation evaluation on or about March 5, 1997, and received a satisfactory rating in every category on the evaluation sheet. 30. Since the January 20, 1997, doctor's letter referenced the desirability for Petitioner to be placed in a non-public job setting, Russell requested an updated doctor's statement regarding her need for continued accommodation. This request was made on or around March 18, 1997. Russell needed the statement to keep Petitioner in a non-public setting since most of the employees' duties involved contact with the public. Russell did not receive an updated doctor's statement regarding Petitioner's need for further accommodation. 11 31. Petitioner complained about her new assignment and felt it was not adequately addressing her medical needs. On or about April 7, 1997, Russell moved Petitioner to yet another desk. Her new duties included processing probation violations which did not involve working with the public, and answering phones during breaks and lunch times. Periodically, Petitioner would have to deal with probation officers, but not members of the public. 32. Petitioner had a doctor's appointment on April 2, 1997. She returned with a Medically Excused Absence form which stated that Petitioner was under the doctor's care for counseling "from 4/2/97 to se" + with nothing written in the blank. As April 2, 1997, was the only date referenced on this form, the form was simply an excuse from work for that date only. Petitioner's leave record shows she took one and one-half hours of sick leave that day. The form was silent as to any continuing work conditions that were necessary or even recommended for Petitioner. 33. Petitioner received a satisfactory performance evaluation on August 5, 1997. 34. Petitioner's leave record reveals that she frequently was granted sick leave and was also granted leave without pay when her leave was exhausted. She was not disciplined for excessive leave nor is there any suggestion in the record that Respondent accused Petitioner of abusing her leave. 12 35. Other than the January 20, 1997, letter stating that it would be to Petitioner's individual advantage to be placed temporarily in a position in which she would not have to be dealing with the public, there is nothing in the record to support anything more than a temporary placement of Petitioner in a position not dealing with the public.
Conclusions For Petitioner: Jarrilyn D. Black, pro se 8030 Old Kings Road, South Number 49 Jacksonville, Florida 32217 For Respondent: LaShanda R. Dawkins, Esquire 117 West Duval Street Suite 480 Jacksonville, Florida 32202
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 Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 13" aay of July, 2001, in Tallahassee, Leon County, Florida. Ait Bidsex \, dis oe f pos Adhinistrat 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 /3%> day of July, 2001. 17
The Issue The issues in this case are whether Respondent, Lakeview of Largo Condominium Association, Inc., et al. (Lakeview or Respondent), violated chapter 70, Pinellas County Code of Ordinances, as alleged in the discrimination complaint (Complaint) filed by Francis Dandrea (Mr. Dandrea or Petitioner); and, if so, what relief should be granted.
Findings Of Fact The following Findings of Fact are based on the relevant stipulated facts and the oral and documentary evidence adduced at the final hearing. The parties agree that the Federal Act (42 U.S.C. 3601 et seq.), the Florida Fair Housing Act (sections 760.20 through 760.37, Florida Statutes, (2019)),2 and “the Pinellas County Code mirror one another, so the same legal arguments apply to all counts of the Complaint.”(*) The Lakeview campus consists of 12 to 14 acres of land and six residential buildings with approximately 60 condominiums in each building, for a total of 312 units. There are laundry facilities (a washer/dryer unit) on each floor for residents to use. Residents are not allowed to use laundry facilities found on the different floors of each building, but must use the facilities on their floor. If the laundry facilities on their floor are in use, 1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was admitted into evidence. 2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the Florida Statutes. No legislative changes have been made to sections 760.20 through 760.37 since 2013. residents must wait until the laundry facilities are available. In 2004, Petitioner was 71 years old, and his wife, Dolores Dandrea, was 70 years old when they purchased Lakeview Condominium No. 6113. On April 13, 2004, Petitioner and Mrs. Dandrea executed the following statement: I have read the frequently asked questions and answer sheet and understand my responsibilities as an owner.3 Lakeview’s Rules and Regulations (the “Rules”), Section VIII, paragraph three provides: “No new washer or dryer installations will be permitted within the units as of January 1, 1994 Upon the sale of the unit, washers and/or dryers within the unit must be removed.”(*) The Rules do not provide who (buyer or seller) is to remove the washer and dryer upon sale of a condominium unit. (*) Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine years. In those nine years, Petitioner testified he had never thought about the Rules, specifically about the washer/dryer unit, as they were “very close” or “right next door” to the first floor laundry facility. In 2013, Condominium No. 6110 was listed for sale. Petitioner either knew or became aware that there was a washer/dryer unit in that condominium, a main purchasing point for Petitioner. On March 29, 2013, Petitioner executed an “AS IS” residential contract for the sale and purchase of Condominium No. 6110. The contract clearly listed additional personal property included in the sale: refrigerator(s); microwave oven; washer; dryer; and blinds. It is undisputed that the washer/dryer unit was installed prior to the Dandrea’s purchase of Condominium No. 6110. (*) An “Estoppel Letter”4 requested by the title company provided there were no violations against Condominium No. 6110 at the time of the sale. 3 As part of Lakeview’s screening process, all new residents have to acknowledge a “55+ Community Frequently Asked Questions and Answer Sheet DBR Form 33-032.” 4 The “Estoppel Letter” provides that the buyers are “Francis and Dolores D’Andrea”. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into Condominium No. 6110 in late April or early May 2013. A washer/dryer unit was in Condominium No. 6110, as specified in the purchase agreement. Petitioner’s current unit (Condominium No. 6110) is a dwelling within the meaning of the Act, 42 U.S.C.§ 3602(b), because it is within a multi-unit building occupied as a residence by several families. (*) On October 24, 2018, Lakeview’s community association manager, Frank Fundora, notified Petitioner and Mrs. Dandrea of their non-compliance with the Rules regarding the presence of the washer/dryer unit in Condominium No. 6110. (*) On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the Dandreas a letter that “required” them to attend a Lakeview Compliance Committee hearing to explain their position as it related to the washer/dryer unit in their condominium. The hearing was held on February 6, 2019.5 On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised the Dandreas that they were found in non-compliance of the Rules by the Compliance Committee. (*) That violation was reported to the Lakeview Board of Directors (Board), who requested the washer/dryer unit be removed from Condominium No. 6110 within 14 days of the letter. Additionally, the Dandreas were notified that the non-compliance (the failure to remove the washer/dryer unit) would lead to a monetary fine of up to $100 per day to a maximum of $1,000. (*) The Dandreas did not remove the washer/dryer unit from Condominium No. 6110. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the Dandreas of the fine assessment of $100 per day for the violation of the 5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however the February 21, 2019, Lakeview letter to the Dandreas provided the hearing took place on February 6, 2019. Rules, up to a maximum of $1,000 fine, consistent with chapter 718, Florida Statutes. The fine was placed on Petitioner's account in an amount of $1,000 on March 22, 2019. (*) Petitioner, via letter to the Board dated April 19, 2019,6 requested a reasonable accommodation from the Rules pursuant to the Act. (*) The letter provides7: Dear Sirs, I respectfully request a conversation with you asap [sic] about reasonable accommodations at our condo complex…[sic] I am enclosing letters from our doctors stating that we should not get rid [of] our washer/dryer due to our medical complications and conditions. Respectfully, Francis Dandrea Along with the April 19, 2019, reasonable accommodation request, Petitioner submitted supporting documentation from medical professionals setting forth the medical conditions of both Petitioner and Mrs. Dandrea as the basis for the reasonable accommodation request. (*) The parties stipulated that the medical documentation below was provided in Petitioner’s request for a reasonable accommodation. That documentation provided: 11/06/2018 To whom it may concern, Francis Dandrea suffers from generalized arthritis in addition to medical diagnoses of emphysema and intermittent atrial fibrillation. His wife is limited functionally by polymyalgia rheumatic. Removing the washer/dryer from their condo would creat [sic] a physical hardship and is not recommended. 6 The certified letter was “signed for” by Mr. Fundora on April 22, 2019. 7 This letter was written in all capital letters. The text is provided in sentence format. Please share this communication with the patient. Signed by: /es/ JOHN H HULL, MD GERIATRICS & EXTENDED CARE 11/07/2018 05:41 Analog Pager: [Omitted] Digital Pager: [Omitted] And: 12/12/2018 To Whom It May Concern: Mrs. Dolores D’Andrea is under my medical care for 5 years. She asked me to write this letter. She has multiple medical conditions. It came to my attention that recently washer and dryer was [sic] required to be removed from her unit. Patient has urinary incontinence. It is absolutely important for her to have washer and dryer nearby, so she can wash her clothes because of frequent accidents. Also she has polymyalgia rheumatica, and it is very difficult for her to walk down the hall to a washer and dryer units that located down the hall in apartment area. [sic] It would be medically necessary for her to have washer and dryer in her apartment. If any questions, please feel free to call my office 727-584-7706. Sincerely, Helen Brvenik, M.D. Petitioner testified to his multiple infirmities: osteoarthritis; atrial fibrillation; and a bulging disc. Petitioner also provided that he had had surgery on both knees (“not replacements”), and he had to give up golf three years ago. Petitioner also testified that his wife has neurological problems, including double vision for which she had surgery, and anxiety issues. On April 24, 2019, two days after receipt of Petitioner’s request for a reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board, informed the Dandreas that Lakeview had denied the requested accommodation. Further, the Board voted to give the Dandreas until May 8, 2019, to comply with the Rules by removing the washer/dryer unit. If the Dandreas refused to do so, their right to use the common recreational facilities would be suspended. (*) Petitioner did not remove the washer/dryer unit, and on May 8, 2019, Lakeview suspended Petitioner's rights to the common recreational facilities. (*) Petitioner filed the Complaint against Lakeview with the PCOHR on May 13, 2019. (*) On September 8, 2019, the PCOHR issued a Determination of Reasonable Cause and Charge of Discrimination. (*) Those individuals who testified at the hearing either are friends of Petitioner, serve (or have served) on Lakeview’s Board, or are employed by Lakeview. However, none of them are health care professionals, and their observations are just that, observations without any medical training or knowledge of Petitioner’s health issues. Mr. Fundora testified that Lakeview did not have a process in place for the type of reasonable accommodation requested by Petitioner. However, Lakeview had, in the past, received reasonable accommodation requests for emotional support animals, large vehicles, and motorcycles. Those requests have been handled on a case-by-case basis.8 A request for additional medical information to support or discredit the requested accommodation for Petitioner (or Mrs. Dandrea) was never sought. There is no dispute that Lakeview objected to the Dandreas retaining the washer/dryer unit. Lakeview’s denial of the request for a reasonable accommodation within two days of the request appears to be solely based on observations made by non-medically trained residents or Board members who 8 At least one request for an emotional support animal was approved, while another was denied when the supporting documentation was found to be fabricated. had seen Petitioner (and Mrs. Dandrea) walking around the Lakeview complex at some time. These witnesses attempted to give opinions from their observations, yet they were not qualified to do so as they did not know if the requested accommodation was medically necessary. Lakeview has not articulated a legitimate, non-discriminatory reason for withholding the reasonable accommodation request. The preponderance of the evidence demonstrates that having the washer/dryer unit within Petitioner’s condominium is a reasonable accommodation; and necessary to afford Petitioner (and Mrs. Dandrea) the opportunity to the use and enjoy their home.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 6th day of February, 1997.
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether Respondent, Pelican Bay Foundation ("Pelican Bay"), discriminated against Petitioner, Timothy C. Harris ("Harris"), in violation of the Florida Civil Rights Act on the basis of Harris's race or color.
Findings Of Fact Harris is an African-American male with dark skin tones. At all times relevant hereto, Harris was the director of Information Technology ("IT") for Pelican Bay. Pelican Bay is a homeowners' association made up of more than 700 members. The members all reside in a community which is managed by Pelican Bay Foundation, Inc. (the "Foundation"). The community is a planned unit development and includes many amenities for its members, including restaurants, tennis courts, a large community center, and many other features. It is an upscale living arrangement that the Foundation strives to make the best possible home for its members. Pelican Bay employs more than 130 full-time employees and a hundred or so more during peak business months. Harris was hired as the IT director on March 15, 2007. He had unsuccessfully applied for the same position previously, but was asked to apply again by White when the position re-opened. The prior IT director, Heather Mahalik, was still on site the day Harris took over, but she was leaving upon Harris's arrival. Harris was hired as one of seven directors for Pelican Bay, each of whom had independent authority to carry out their assigned duties. Harris's division, IT, was a support division as opposed to a customer service division, such as restaurants and recreation. The directors were expected to work together in all areas in which their duties affected other directors' positions, whether it be service or support related. Harris, as IT director, would necessarily have to interact with all the other directors, because the computer system was used by everyone. Harris's salary at the time he was hired was approximately $65,000 per year. At the time he was hired, Harris had one assistant, Dan Almaral. Harris was told that he could hire a second assistant, but during the course of his employ, regularly said he was too busy to train a new person, so no additional assistant was ever hired. At some point, Harris terminated his single assistant, because Harris believed Almaral was not always available when Harris needed him. After terminating Almaral, Harris performed all of the IT duties by himself. Based upon the evidence, that was more Harris's choice than Pelican Bay's desire. Almost immediately upon Harris's beginning work, the community's main computer server crashed.1/ Harris put in numerous overtime hours and was able to repair the server, at least temporarily. Pelican Bay congratulated and praised Harris for his work on the computer system at that time. His response was to tell his employer, "Y'all won't be seeing me for a while because I'll be playing golf." It is clear the parties were on good terms at this point in time. Notwithstanding the initial camaraderie, Harris was often viewed as too business-like and not a very social creature. He was seen by his peers as too quiet and humorless. The president of Pelican Bay described Harris as defensive and evasive. Harris admittedly had difficulty dealing with some of the other directors on a personal level. As he stated during final hearing, when talking about his demeanor at work, "You don't pay me to be a jokester. You pay me to be an IT director." His personality seemed to be all business, all the time. There were problems in the IT department even after Harris's initial repair of the server. There were four primary problem areas, including: (1) The telephone system; (2) employee time clocks; (3) the email system; and 4) the software programs, including the one affecting credit card terminals at the Pelican Bay restaurants. The telephone system was part of Harris's job responsibility. The Pelican Bay community is spread out over a large area, and its phone system is integral to maintaining communication between the various service areas, e.g., the restaurants, recreation areas, etc. During the Fall of 2007 the telephone system went down all across the Pelican Bay campus. Everyone but Harris seemed surprised by the situation. Harris, however, said that the down-time was due to a scheduled change-over to a new voice-over IP telephone system. That is, Harris intentionally took down the existing telephone system while he installed the new system. Harris says other directors were notified of the change, but there is no evidence to support that contention. At the time the phones went down, someone noticed boxes of new telephones stacked in a hallway and eventually surmised that the new system was being installed. There does not appear to have been any general, campus-wide notification as to exactly when the phone system would be changed, so many users were caught unaware. This situation caused problems for many of the Pelican Bay employees and the other directors. The tennis center was especially adversely affected by the telephone system changeover. Many of its court reservations were done via telephone. Prior to the conversion, the center had two desktop phones and one cordless phone. After the changeover, it had only one telephone, a desktop version. The cordless phone had been integral to assisting players out on the courts who had need for a telephone. It was also used in case of emergencies to summon medical help. Harris told the tennis director that the cordless phone would not work with the voice-over internet system which had gone into place. However, as of the date of final hearing, the cordless phone had been configured into the voice-over internet system by an IT manager. The phone is currently working within that system without any problems. The employee time clocks were also within Harris's realm of responsibilities. Shortly after Harris started work, the time clocks began to experience problems. There had been some intermittent issues with the time clocks before Harris's arrival, but the problems increased in frequency and extent after Harris started work. Some of the clocks would function properly while others did not. As a result, employees were required to log in and out of work manually, i.e., on a sheet of paper. The log-in sheets would then be entered by hand into the payroll system. This required several extra days of work by the human resources (HR) department. Furthermore, many employees became so skeptical about the time clocks that they would clock in manually, even after the time clocks had been repaired. The email system also experienced significant problems during Harris's tenure. The system would be down for days at a time, and once it came back up, many emails would be missing. Different employees lost different volumes of emails, but there were fairly universal losses by all employees. An HR software called JONAS was selected by the former IT director, Harris's predecessor. Harris was told to get the JONAS software system in place as soon as possible. However, Harris balked at implementing the system, saying that the Pelican Bay staff had not been sufficiently trained in its use. It does not appear that Harris was trained in operating the JONAS system either. Harris never implemented JONAS while working at Pelican Bay. The new system was put in place after Harris left his employment at Pelican Bay. Overall, the computer system did not work well when Harris was employed. The first crash, which occurred the day he was hired or shortly thereafter, was not Harris's fault, but it was his responsibility to repair. He did so after many hours of work and taking the entire system off-line for two or three days. However, the system seemed never to work correctly after the repair. Another computer system crash occurred in December 2007, just as Pelican Bay approached a critical time for data collection and annual reports. Harris indicated that the continuing problems with the computer system would require taking the entire system down for a couple of days. Pelican Bay did not want to take the system down, and, so it operated in a less than optimal status for a period of time. As a result of the continuing problems, the system crashed on or about December 19, 2007. Harris did a very temporary fix, then took the system down entirely on December 24, 2007. Harris then worked three straight days repairing the system. He says he lived at work without showering or changing clothes the entire time he worked on the system. The system was brought back up on December 27, 2007, but the restaurant functions were still not working at that time, a significant problem as the restaurants dealt with end-of-year parties and events. A significant dispute arose between Harris and Chas Tatigian, the director responsible for food and beverage services. During some of the computer crashes, the restaurants could not order food electronically. That is, the wait staff could not input an order directly to the kitchen; it had to be done manually on paper. Although functional, the manual ordering of food was a vastly inferior method of operation. Tatigian complained profusely about the situation, but Harris seemed unmoved by the complaints. On or near Mother's Day, one of the restaurants' busiest days, Harris refused to input a special menu on the computer system. He opined that it was Tatigian's responsibility to do so, even though IT had historically performed that function at Pelican Bay. This unilateral change in policy created significant difficulties for the restaurants. There were also intermittent problems concerning the processing of credit cards electronically, but Harris told Tatigian that his people could just do that function manually as well. At the next director's meeting with the president, Tatigian and Harris exchanged heated words. The president asked them to resolve their differences; they shook hands and Tatigian apologized to Harris. There is no evidence as to whether Harris apologized to Tatigian. Computer Issues As stated earlier, the Pelican Bay computer system crashed in March 2007 and again in December 2007. During the interim, there were consistent and repetitive problems with the system, including email errors, restaurant ordering system errors, time clock errors, and other related issues. During this time, there was no effective back-up for the computer. Harris was backing up the entire Pelican Bay system on two 500-gigabyte USB drives which he stored at his home. Those two drives could not back up everything on the system, and the back-ups were not done regularly. The USB drives were not sufficient for restoring all information that might be lost. At final hearing, Harris said that he never took the backup data to his house, but that statement was contradicted by several sources. Harris was directed to (or volunteered to, the evidence is unclear) create a Help Desk for the purpose of dealing with user problems. Although White and Hoppensteadt testified that the Help Desk was never created, Harris introduced an email from July 2007 describing use of the newly created Help Desk. The email went to all directors for distribution to their staff. By November 2007, there was an email from Harris saying the Help Desk was no longer functioning. There was insufficient evidence at final hearing to make a determination as to whether the Help Desk was operational between July and November. At the beginning of 2008, Pelican Bay decided to have an outside, independent company do a thorough review (which was often referred to during the final hearing as an "audit") of the entire Pelican Bay computer system. RSM McGladrey (the "Company") was hired to review the system and provide assistance eradicating all problems which were found. William Boothe was the primary consultant for the Company. His field team for the review consisted of Bryan Warren and Chip Fradet. The review was initially scheduled for February 5 and 6, 2008. Harris was not available on those dates, so as an accommodation to him, the dates were changed to February 6 and 7, 2008, then later moved up to January 25 (a Friday) and 29, 2008 (the following Tuesday). The Company met with Harris as the review commenced, but did not tell him about any of Pelican Bay's concerns. Rather, they told Harris they were there to help him in any way possible. Harris voiced some frustrations to the Company representatives about difficulty getting new items approved, but did not express any major grievance against Pelican Bay. The field team then talked with several of the users, people who relied upon the computer system to perform their jobs. The team received very negative feedback about Harris, leading them to further investigate Harris's operations. The review turned up the following areas of concern: The thin client point of service devices set up by Harris to provide service departments the ability to operate required a thin client server, but none was ever implemented or planned by Harris. There was insufficient back-up of the computer, as discussed earlier herein. Harris told the team about his two 500-gigabyte USB drives, but the team was never shown the drives and could not verify their existence. The USB drives were not a proper means of backing up the Pelican Bay system. There were no regular back-ups being done on the computers, a major risk management error. The Pelican Bay system was using software personally licensed to Harris for various applications, including Symantec and MicroSoft Windows 2003. Such use is not usually allowed because personally licensed software is not meant for use by a large group such as Pelican Bay. Hoppensteadt said he was not aware of this situation until he found out during the Commission's investigation into Harris's discrimination complaint.2/ The president was not happy about the arrangement because Pelican Bay's finances would certainly allow for purchase of its own licensed software. To Hoppensteadt's knowledge, Harris had never requested authorization to purchase the necessary licenses. It is not clear from the evidence what licenses were in place prior to Harris's arrival at Pelican Bay. Harris's operational plan called for the use of multiple software application servers for the JONAS club management solutions to offer redundancy in case of failed connectivity. This plan would require synchronization of the JONAS system to allow multiple servers to operate the software. JONAS does not offer such synchronization. The wireless access design employed by Harris allowed outside individuals to access Pelican Bay's private network. Although the Company representatives had initially felt that Harris would work with them to rectify the existing problems, that feeling changed at some point during the review. Harris became uncooperative and combative with the field team. Ultimately, the Company advised Pelican Bay that Harris was responsible for many of the system's failures or shortcomings. Alleged Discriminatory Acts There were five separate incidents or events which Harris believes constitute racial discrimination against him by Pelican Bay: 1) The choice of colors for Harris's office; 2) Comments by a co-worker at lunch; 3) Comments by a co-worker who used an offensive analogy; 4) An anonymous email which was ugly in nature; 5) A note left on Harris's desk using the "N" word. The circumstances surrounding each of those items are set forth below. Paint Colors Harris determined that the colors selected to paint his office had potentially racially insensitive names, to wit: Silk Knot (also referred to sometimes during the hearing as Slip Knot) and Cotton Field. Harris says that such names could be offensive to a person of color. Pelican Bay says the colors were picked out prior to Harris being hired and were approved by White, an African-American woman. The invoices for the paint purchases are dated August 8, 2007, i.e., after Harris was hired, but there was no competent evidence as to when the paint was actually ordered. There is also no evidence that the colors of the paint were chosen with Harris's race in mind. White said the names were just that, names, and she saw no racial undertones connected to the names. Lunch Comments During a lunch one day at a local Mexican restaurant, Harris was sitting with several co-workers. Harris, as usual, was fairly quiet, simply listening to the conversation around him, rather than joining in. Lisa Warren was sitting across the table from Harris, who was sitting in front of a large window. Warren said at one point that Harris should smile or say something so that she could see him. Harris later told White that the comment was offensive to him. Warren, on the other hand, seemed not to realize the potentially derogatory meaning of her statement. When confronted by her superior, White, Warren was mortified and immediately drafted an apology to Harris. She delivered the apology to Harris and verbally apologized as well. Harris indicated that he accepted the apology and that he and Warren were "okay." However, things were never the same between Warren and Harris after that incident. Analogous Comment On or about October 24, 2007, Harris was involved in a director's meeting that was fairly contentious and strained. At one point during the meeting, Larry Tomsic was referring to the morass of problems associated with the computer system. He referred to them as a real "tar baby" of a problem. After the meeting, Hoppensteadt told Tomsic that the comment was racially insensitive. Tomsic said it was not meant to be; it was simply a literary reference to the Uncle Remus story about the animal getting stuck the more he struggled to extricate himself from the rabbit made of tar. Nonetheless, Tomsic sent Harris an apology and asked that they remain friends. Harris said that he was not terribly offended by the comment and accepted Tomsic's apology. However, Harris did not consider Tomsic a friend.3/ Email to White White received an anonymous email shortly after she became vice president of Pelican Bay. The email dated April 4, 2007, shortly after Harris was hired, was extremely ugly and used the "N" word several times. The email was provided to local police for investigation. Although the source of the email was tracked down to a friend of a former employee, its author was never actually identified. White was appalled by the content of the email, but brushed it off as the work of an ignorant person. The email did not mention Harris, but Harris considered the email an example of racial discrimination at Pelican Bay. Note to Harris Harris provided the Commission with a copy of a note which he says was left on his desk in mid-April 2007, just a month after he was hired. The note said, "Tim Harris, (sh)IT Director - Head [N] in Charge." Harris had never shown the note to Hoppensteadt or White,4/ nor had he ever raised a complaint about the note during his employment. The note surfaced only after Harris filed his discrimination claim against Pelican Bay. The authenticity of the note and its credibility as a discriminatory act against Harris, is doubtful. If the note had actually existed, Harris would have been bound by Pelican Bay personnel policies to have reported it. There is no credible evidence that he did so. At a meeting between Harris, White and Bill Bowden, there was a heated discussion wherein the participants expressed their frustrations. Harris "exploded" at the meeting and yelled at Bowden, "Just because my skin is dark, don't think that I'm a dummy" or something to that effect. This reference to race was raised by Harris, not directed at him. There was no persuasive testimony as to what caused Harris to make that remark. Harris referenced unspecified instances of being frustrated in the performance of his duties by un-named individuals. He testified using terms like "stranger danger" and "push back," but without any showing as to how his frustrations related to discriminatory actions by any individuals. All in all, Harris did not prove any discriminatory action by Pelican Bay or its employees directed at him. Suspicious Events and Circumstances While Harris was IT director, he was supposed to be a source of help for employees experiencing problems with computer-related issues. Harris represented that he would be setting up a formal Help Desk to deal with questions, but whether the Help Desk was ever actually operational is questionable. (See discussion in paragraph 19, above.) Butters, an HR manager, said that any time she complained to Harris the problem just got worse, so she stopped asking him for assistance. During a vacation out of state, Butters logged on to her computer to check her work emails and do some work-related tasks. She saw that her mouse was being controlled remotely by someone else, so she called Harris immediately. While she was talking to Harris, the phantom control of her computer stopped instantaneously. Harris did not acknowledge using or controlling her computer, and she saw no further evidence of that occurring. Harris said he did not believe someone could remotely control Butters' computer, although that is a fairly common occurrence in business networks. Harris and Pelican Bay disagree as to whether Harris was entitled to or received performance evaluations. Having been hired in March 2007, Harris would not have been eligible for an evaluation until March 2008. His employment with Pelican Bay was terminated in February 2008. In order to prove his entitlement to an evaluation, Harris produced an exhibit showing that Harris's name was included on a "Goal Attainment" form, an internal Pelican Bay document utilized by management to come up with employee bonuses. That document, however, was a prototype that was eventually rejected by management. It had never been distributed to directors. Only three individuals--Hoppensteadt, White and Butters--were supposed to have access to and be able to review employee bonus reports. Harris included copies of those reports in his complaint to the Commission. When questioned, Harris could not say where the reports came from or how he came to be in possession of them. Likewise, a number of emails (altered to remove the identifying sender/recipient information) were submitted to the Commission by Harris. Some of the emails were between employees at Pelican Bay, other than Harris. Again, Harris could not specify how he came to be in possession of those emails, only that someone gave them to him. Lastly, the seemingly most poignant and egregious example of possible discrimination against Harris was the sign purportedly placed on his desk. The sign, containing racial slurs and provocative language, was never shown to Harris's direct supervisor. White, who was at times Harris's confidant and a fellow person of color, disclaimed any knowledge of the sign until discovering it in the Commission's documents. Her testimony in that regard is credible. It does not appear that Harris was forthright in his testimony about the sign. Termination of Employment Based upon the Company's findings and recommendations, coupled with White and Hoppensteadt's own misgivings about Harris, it was ultimately decided to terminate Harris's employment with Pelican Bay. On February 12, 2008, Hoppensteadt and White summoned Harris to the president's office and advised him that his employment was being terminated, effective immediately. They explained to Harris that the IT department was being restructured to include a systems administrator to deal with user and equipment issues. All network design projects would be done by way of an outside consultant. The system administrator hired by Pelican Bay was a white male, but he was not hired in the same position vacated by Harris. Rather, the system administrator was not a director-level position, was paid much less than Harris had been paid, and had different responsibilities than Harris. Harris was offered a severance package at that time. He was given an opportunity to review the elements before deciding whether to accept the package, which included one-month's salary. Harris never did accept the severance package.5/ Pelican Bay's normal policy when terminating the employment of director-level staff was to require the person to leave the premises immediately. This policy was implemented so that the terminated employee would not face potential embarrassment and so that their access to confidential Pelican Bay information would be limited. After being told his employment was terminated, Harris asked for and was given a few more days before his employment officially ended. His last day of employment was February 15, 2008. The testimony of Hoppensteadt and White is extremely credible as to the need to terminate Harris's employment and the basis for that termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner, Timothy C. Harris, in its entirety. DONE AND ENTERED this 21st day of February, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of February, 2011.
