Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent committed an unlawful employment practice by discharging the Petitioner from his position with the Respondent. Petitioner contends that he was discharged on account of his sex. Respondent contends that Petitioner was discharged on account of a severe attendance problem. Petitioner contends that female employees with similar or worse attendance problems were not terminated.
Findings Of Fact The Respondent is a corporation which does business in the State of Florida. The Respondent is a distribution warehouse for Seven-Eleven Stores. The Respondent is an employer within the meaning of the Florida Human Rights Act of 1977. Petitioner is a male citizen of the United States. He was employed in various capacities by the Respondent from January, 1974, until he was discharged on November 24, 1981. At the time of his discharge, he was employed as a receiving clerk in one of the Respondent's warehouse facilities. Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations concerning his discharge in a timely manner. A determination of reasonable cause was issued by the Commission, effort at conciliation failed, and Petitioner filed his Petition for Relief in a timely manner. From late in 1978 until the time that Petitioner was discharged, all of the Petitioner's supervisors at the Respondent experienced difficulties with Petitioner due to a poor attendance record. At the time, the Respondent followed a four-step disciplinary procedure. Step 1 was employee counseling. Step 2 involved issuance of what was called a "pink slip," or unsatisfactory employee report. At Step 3, a final letter of warning would be issued. Step 4 was discharge. The first formal record that Respondent entered Step 1 of the disciplinary procedure was an employee counseling record issued October 31, 1978. It was therein noted that Respondent had failed to call in prior to an absence from his work shift. The second employee counseling record was issued April 4, 1978. The Petitioner's supervisor discussed repeated tardiness and absences with him on that occasion. Additional counseling records were issued April 11, 1979, and April 30, 1979, and raised the same problems. While these were apparently the only formal records of employee counseling, the Petitioner had been counseled on numerous other occasions regarding excessive tardiness and absenteeism. Respondent entered Step 2 of the disciplinary procedure on November 28, 1979, when a "pink slip," or unsatisfactory performance report, was issued. It was therein noted that the Respondent had been counseled about excessive absenteeism and that his performance had not improved. Petitioner's record did not improve, and on March 19, 1980, a warning letter was issued, thus placing Petitioner in the third step of the disciplinary process. The Petitioner's record regarding excessive tardiness and absenteeism was set out in the warning letter, and it was stated that if Petitioner did not improve, it could lead to termination of his employment. Despite issuance of the warning letter, Petitioner's performance did not improve. He continued to be frequently absent or tardy. A second warning letter was issued January 28, 1981. It was therein stated: As indicated to you on your performance review January 14, 1981, you have shown little or no improvement in your attendance since the warning letter of March 19, 1980. Since several months have passed without action, you are being given this letter to serve as formal notice that you remain at the third step of our disciplinary policy. If immediate improvement in [sic] not shown it could lead to termination of your employment. Despite the second warning letter and continuing efforts by Respondent's supervisor to counsel Petitioner, Petitioner's record of excessive absenteeism and tardiness continued. On November 24, 1981, his employment was terminated. At the time of Petitioner's termination, the Respondent did not have an established policy regarding how many times an employee could be late or absent without being subjected to various stages of the Respondent's disciplinary process. The Respondent did, however, have good grounds for counseling, reprimanding, warning, and ultimately terminating Petitioner. The Respondent's supervisors were lenient with Petitioner. He was counseled continuously and warned twice, once more than usual, before he was terminated. Petitioner alleged that three specific female employees of the Respondent had absentee problems as severe or more severe than Petitioner's, but were not terminated. The evidence does not support this allegation. Each of the three female employees, Theresa Roberts, Lisa Watt, and Gloria Sanders, had attendance problems. Each was subjected to disciplinary action by the Respondent. Sanders had received a Step 3 warning in October, 1981. Roberts had received a Step 2 unsatisfactory performance report in November, 1981. Watt had been counseled respecting her problem. None of these three female employees had attendance problems as severe as Petitioner's. Furthermore, each showed some improvement following counseling, unsatisfactory performance reports, or warnings. Nothing in the treatment of these three women vis-a-vis the Respondent's treatment of Petitioner demonstrates any sex-based bias, or discriminatory action, on the part of Respondent. The Respondent now has a set policy that includes a point system regarding discipline based upon excessive absences. The policy was not in effect when Petitioner was terminated. Some people with absentee problems less severe than Petitioner's were terminated for excessive absences during the years 1977 through 1981. Other employees with attendance problems more severe than Petitioner's were not terminated. It does not appear that this disparity had any basis other than the fact that Respondent had no set policy regarding excessive absences and dealt with the issue through its individual supervisors subjectively on a case-by-case basis. In 1981, the Respondent had approximately 170 laborers or unskilled workers in its warehouse. Forty-four of them were females. During the period 1977 through 1981, 20 employees at the warehouse were terminated for excessive absences or tardinesses. Thirteen of them were male, and seven were female. Five of the seven women who were terminated had fewer absences or tardinesses than Petitioner after receipt of the Step 3 warning. Neither these statistics nor any specific evidence regarding disciplinary action taken by Respondent demonstrates any sex-based bias or discrimination.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination due to Petitioner’s national origin.
Findings Of Fact Respondent Employer is a paper packaging plant located in Cantonment, Florida. It fills orders from retailers as specified on purchase order forms (POFs). Respondent manufactures a variety of bags for containing retail goods. Petitioner worked for Respondent for more than eight years. During part of this time, he was a member of a union which had a collective bargaining contract with Respondent. At all times material, he did shift work involving heavy machinery "on the floor." Petitioner was terminated on June 13, 2003, after a series of disciplinary actions, the last of which arose out of events occurring on June 9, 2003. Petitioner contends in his Proposed Recommended Order that Respondent did not follow the guarantees of his union’s collective bargaining contract, the established grievance procedures, and/or Respondent’s policy and procedure manual for tier-disciplining or for counseling him. However, Respondent’s failure to comply with these artificial standards, or Respondent's failure to only partially comply with them, is not determinative of any issue under Chapter 760, Florida Statutes, unless Petitioner also can show that other employees, who were not of Petitioner’s protected class, were treated differently or more favorably than Petitioner in a similar situation. It appears, however, that each time Petitioner requested union representation, he was provided with union representation. When he did not request union representation, he was not provided with union representation. On his Charge of Discrimination, Petitioner checked only the box for “national origin.” He did not check the box for “race.” However, under the portion of the form reserved for “The Particulars Are:”, Petitioner filled in: During my employment, I was constantly harassed by being called racially derogatory names. On June 13, 2003, I was terminated because of national origin (Native American). I was told that I was terminated for negligence. On his Petition for Relief, Petitioner complained, among other things, of “ethnic slurs” such as: Hay [sic.] Indian called Derogatory – names such as two Dog about my color and race. About a year before his termination, Petitioner had a feud with a white male co-employee, Clifford Stuckey. This feud is described below more fully and in sequence with other events. Generally, however, Petitioner was a non-confrontational employee with a good work ethic. With regard to his job performance, Petitioner was a model employee until he was promoted to machine operator more than two years before his termination. Petitioner had done well as an assistant machine operator, but after promotion, Petitioner was disciplined for a rash of quality control errors. The nature of his quality control errors was the same as that of many other similarly-situated employees, but his errors differed from other employees' errors in that he accumulated more quality control errors in a shorter period of time than any of his co- workers; he demonstrated too many such flaws within a single twelve-month period; and he cost the employer a considerable amount of money in wasted goods. For the eight-plus years of his employment, nicknames were the common way Petitioner and his co-employees addressed one another, day-in and day-out on the floor of the plant. Some supervisors picked up these nicknames due to their regular and pervasive use among subordinates. Many employees had nicknames that they did not object- to. One Black male employee purchased a vanity license plate which read "African," so co-employees called him "African," without anyone considering the nickname to be a racial slur or otherwise derogatory. Carl Broadnax (Black male) was proud to be called "Black Stud." Ronald Moran (white male) was known as "Big Ron." A Puerto Rican employee named Tony Crevice (phonetic spelling) was called "Julio." Eric Adkins (Black male) called another employee (race and gender unspecified) "Pooh Bear." Wesley N. Houston (white male) was called "Cowboy." In the course of disciplinary actions against him during the last fifteen months of his employment, (see Findings of Fact 52-53, 65-70, 80 and 81), Petitioner told Nancy Glass, Respondent's white female Human Resources Director, that he was an "Indian." She understood that he perceived himself to be an "Indian." During his eight-plus years in Respondent's employ, Petitioner was perceived by many of his co-employees as an “Indian” or “Native American.” Some of them called him by his first name, "James," but most of them also called him by the nicknames, “Indian,” “Two Dog,” “Two Dogs,” and/or “Two Dogs Fucking.” No clear evidence was presented as to how often any or all of these nicknames were used to address, or in reference to, Petitioner, but their usage must have been as common, continual, and pervasive as any of the other nicknames used day- in and day-out on the floor. The foregoing nicknames for Petitioner were used by co- employees and accepted by Petitioner for more than eight years without rancor or dismay on either side. For more than eight years, the users did not perceive that the nicknames might be racially provocative or demeaning of Petitioner's race or national origin, and they did not sense that he might be hurt by the nicknames, because he did not express hurt feelings or offense to anyone. Only one witness thought Petitioner's nicknames were a bad thing. Ronald Williams (Black male and current union president) knew that "Two Dogs" was a common name given to Petitioner and that it was an abbreviation for "Two Dogs Fucking." He heard the abbreviation "Two Dogs" directed to Petitioner, but he never heard the full phrase even used around Petitioner. He considered both phrases to be racial in origin and racial in context, but even Williams could not say that Petitioner ever reacted oppositionally to any of the nicknames. No other witness acknowledged hearing the nickname "Two Dogs Fucking." All of them thought the other nicknames which were applied to Petitioner were neither racial nor offensive. For instance, on a regular basis, Ricky Mitchell (white male) called Petitioner "Indian," without considering it a racial slur. Petitioner addressed Mitchell as "Paw Paw." Ronald Moran (white male) called Petitioner "Two Dogs," as a nickname, without assuming any racial connotation. Frank Talamo (white male, and sometimes-union shop steward) has used the term "Nigger" in his private life, but stated that he would not use it on the job, because it is, in his opinion, a racial slur. Mr. Talamo heard Petitioner referred-to as "Indian" and "Two Dogs" on a regular basis. Mr. Talamo testified that although he did not, himself, use the nicknames "Indian" and "Two Dogs" with Petitioner, he also did not consider them to be racial slurs, as he would have considered the word "Nigger." Eric Adkins (Black male) heard Petitioner called some "bad" or "harsh" names, but he did not specify what the names were; he also did not characterize the bad or harsh names as "racial." Carl Broadnax (Black male) testified that he called Petitioner "Two Dogs" because Petitioner's Cousin Joey, another Indian who worked in the plant, told Broadnax to call Petitioner by his Indian name, "Two Dogs" or to call Petitioner "James," Petitioner's given name. Because of Joey's instruction, Mr. Broadnax thought everybody called Petitioner "Two Dogs." Mr. Broadnax heard Petitioner called "Indian" by others. Ivory Stallworth (white female) heard Petitioner called "Two Dog." Aaron Hodges' paternal grandmother is "Indian" or "Native American." Mr. Hodges does not make a distinction between the two designations, "Indian" and "Native American," and does not consider either designation to be derogatory language toward his grandmother or toward anyone else. He picked up the nickname, "Two Dogs" from its general usage on the plant floor to, and about, Petitioner. Cynthia Perkins (white female) stated that Petitioner was called "Two Dogs" in "general talking." Wesley N. Houston heard Petitioner called "Indian" and "Two Dogs," but did not consider these nicknames to be racist remarks or derogatory language. Clifford Stuckey (white male), with whom Petitioner feuded for a time, regularly called Petitioner "James" and "Two Dogs," because those names were what Petitioner was being generally called when Mr. Stuckey came to work for Respondent. He only knew Petitioner by his nicknames for two years, while they were "on the job friends" and "house visiting friends." Stuckey never heard anything else added to "Two Dogs." Apparently, Stuckey called Petitioner both "James" and "Two Dogs" before, during, and after the height of their feud, described more fully below. Also, at least two supervisors (Allen Givens and Eddie Jeffres) used some of these nicknames in addressing Petitioner. Jeffres participated in an early disciplinary action against Petitioner, but neither Jeffres or Grimes participated in Petitioner's eventual termination. Allen Givens was a machine operator, and thus a co- employee of Petitioner. Sometimes, he was also an "acting supervisor" over Petitioner. He heard others on the floor call Petitioner "Indian" and "Two Dogs." He personally called Petitioner "Indian" or "James." Givens testified that if Petitioner had ever intimated, while Givens was "acting supervisor," that Petitioner had a problem with any nickname, he, Givens, would have put a stop to it. At some point, Givens, while he was "acting supervisor" over Petitioner's shift, took Petitioner into the office and explained that Petitioner needed to do something about his body odor. The meeting between Givens and Petitioner was one-on-one, with no union representative or other employees present, and it was not written-up. Petitioner did not testify concerning this meeting. Givens was the only other person in the meeting, and he testified that he had initiated the conversation informally when he did, because he personally had noticed Petitioner's unpleasant body odor that day and because other employees had complained to him that day about Petitioner's body odor. Givens, whose grandmother is an American Indian or Native American, did not consider his comments to Petitioner about body odor to be racial in nature, and race or national origin was never mentioned by either himself or Petitioner during their meeting. Givens further testified, without refutation, that such a meeting happened only the one time; that the conversation was in the nature of "counseling," as opposed to the formal disciplinary step of "coaching" Petitioner; that he had felt he was protecting Petitioner's feelings and privacy by not making a record of this counseling session; and that no record was made because it was not part of the employer's three- tiered disciplinary formula. Other witnesses confirmed that general day-to-day supervision, which did not lead to some form of oral or written warning or other standardized disciplinary action against an employee, was not normally written-up for the employee's personnel file. Not making a record of a minor counseling session was to the employee's advantage, because once something was recorded, it could be used against the employee as part of the employer's three-tier progressive discipline formula. Although all witnesses concurred that working in the employer's un-air-conditioned plant, around heavy machinery, was sweaty work and that everyone smelled bad at some time or other, Frank Talamo, Eric Adkins, and Aaron Hodges also testified that at some point, Petitioner had a particularly offensive body odor. On one occasion, Talamo had asked a foreman to speak to Petitioner about it. No witness attributed Petitioner's body odor problem to his national origin or his race. Although Petitioner may have been the only employee counseled about body odor by Givens, other supervisors had counseled other employees. After being told about his body odor problem, Petitioner kept deodorant in his tool box and used it. Respondent never disciplined Petitioner for body odor. Eddie Jeffres, (white male) was Petitioner's team manager/supervisor. Many witnesses heard Jeffres address Petitioner as "Two Dogs." Mr. Jeffres addressed Petitioner as "Two Dogs," without any add-on, because that was the nickname Petitioner's co-workers used. He testified that he did not consider the nickname "professional," but he used it in a spirit of levity and camaraderie. He further testified that he would not have used it if, at any time, Petitioner had objected to it or had acted embarrassed by it. Because Petitioner always replied professionally and without rancor when the nickname was used, Mr. Jeffres did not equate its use with giving offense or hurting feelings. Jackie Hodge was department manager. He considers himself to be "Cherokee-Irish." He never heard "Two Dogs" used with an add-on. He did not hear the abbreviated form used in Petitioner's presence, either, but he heard Petitioner referred- to as "Two Dogs." He, personally, did not refer to Petitioner as "Two Dogs," but he also did not think the term was racially demeaning. If he had thought that the term were racially demeaning, he would have sought out Petitioner's opinion on the matter. If Petitioner had complained to him, he would have prevented use of the nickname by other employees. However, it is his managerial style not to start an inquiry unless an employee complains, and Petitioner never came to him directly. Indeed, none of Respondent's co-employees or supervisors thought Petitioner objected to any of the nicknames used to his face or used about him in general conversation, because Petitioner answered to the nicknames and did not complain or answer back with rancor when the nicknames were used. Additionally, Ms. Stallworth thought "everyone was okay with what was going on," because Petitioner answered to "Two Dog." Robert McCollough was production manager. He considers himself to be "an American with an Indian great-grandmother who was full-blooded Cherokee." McCollough's wife of over 30 years is a Creek Indian, and his children went to college on an Indian grant. He never heard of "Two Dogs" and was not aware it was being used to refer to Petitioner, but he testified that unless Petitioner complained about the nicknames, the employer's management would not root out a problem where none was perceived. Respondent Employer's predecessor in interest had an Anti-Sexual Harassment Policy in its employee's manual as of 1988. This policy was carried over by Respondent Employer. Petitioner received, and signed for, the Anti-Sexual Harassment Policy when he was first employed by Respondent Employer in approximately 1995. In 1999, when Respondent promulgated a similar Anti-Workplace Harassment Policy that specifically prohibited discrimination on the basis of race or national origin, Petitioner received a copy of it.6/ The employer's Anti-Workplace Harassment Policy incorporates a procedure for confidentially addressing employee discrimination complaints, including harassment complaints. Briefly, that policy provides that an employee who feels harassed should directly tell his or her harasser what act or speech is offensive. If that confrontation does not end the problem, the offended employee is encouraged to go to the Human Resources Office, or to any supervisor on the chain of command, to lodge a confidential complaint. Even an "800" telephone number is provided so that a harassed employee may report the problem in complete confidentiality to the employer's legal office. Since 1999, Petitioner has attended annual meetings discussing the Anti-Workplace Harassment Policy.7/ The Anti-Workplace Harassment Policy is posted in the plant where any employee can refer to it, and it is sent out to employees' homes in newsletters. Respondent Employer also has in place, and has posted, an Equal Employment Opportunity Policy. All witnesses agreed that while employed, Petitioner never raised his nicknames as a harassment or racial issue or as an issue of national origin to anybody.8/ Nancy Glass confirmed that, despite her "open door policy," Petitioner never filed a formal written protest with the employer's Human Resources Office because of any nickname. Petitioner took the machine operator certification course, but he did not pass it the first time. The second time he took the course, he passed. He became an operator about 1999. Prior to that time, he was an assistant operator a/k/a "a feeder" or "a helper." Machine operators receive an Operator Skills Training Handbook during their initial 40-hour machine operator certification course. The handbook describes the functions of the machines on which the operators work and the policies and procedures that operators and their assistants are required to follow, including proper preset procedures, proper set-up procedures, proper sleeve types, and how often quality checks should be done by both operators and assistant operators. As an operator, Petitioner received quality assurance training twice-a-year. If an employee's job performance requires correction, he first would be provided additional training. This training would be documented as a coaching session, rather than as discipline. Other than that, the employer has a three-tiered corrective action (discipline) program in place, as set out in the employees' handbook. All levels of discipline are documented in writing, even oral warnings. If supervisors do not perceive an error as correctable by retraining an employee, an "oral warning" is issued "in writing" for the employee's first error. The employee's next substandard performance results in a "written warning." The third step is to put the employee on paid Decision Making Leave (DML) for one day, to go home and think about how to correct his flaws and to write out a letter saying how he is going to accomplish that correction. If all three steps occur in a 12 month-period, a fourth error is supposed to result in termination. If the employee passes the 12 months' mark without a third error, the tiers recycle. On average, the employer expects its operators and assistant operators to check their machines for accuracy every half hour. Usually, the operator and assistant operator stagger their respective checks in hourly sequences, so one man checks on the hour and one man checks on the half-hour. This means that the machine/product is checked every half hour by one or the other of them. Some POFs require more frequent quality control checks. At the beginning of each shift, each new operator coming on duty is responsible for comparing the POF to be run, or still running from the last shift, with the product currently coming off the end of his machine. If that operator does a quality check at the very beginning of his shift, and then checks repeatedly at the required intervals throughout his shift, no more than thirty minutes (and thirty minutes' equivalent of non-conforming bags) can go by before an error is noticed. The point of quality control checks is to ensure that the employer avoids running non-conforming bags. Sometimes, non-conforming bags can be sold to a different buyer, often at a lesser profit. More often, they cannot be sold, cannot be recycled, and must be trashed. There was no substantial difference in the discipline the employer applied to employees producing non-conforming bags which could be sold to a different buyer and the discipline it applied to employees who produced non-conforming bags, all of which had to be destroyed for a total loss. The employer has been reasonably consistent in holding responsible everybody associated with a machine's quality control error who was on the shift when the quality control error was discovered, such as that shift's assistant operator, operator, and ending supervisor, for the same machine. Depending upon when respective POFs were started and finished, the employer has also held responsible whichever operator preset the machine on the previous shift and that operator's assistant operator, both of whom should have performed the quality control checks on the previous shift. Sometimes that shift's ending manager was disciplined, too. Usually, the operator coming on shift and his assistant operator also have both been disciplined if non-conforming bags are run. Sometimes that shift ending manager was also disciplined. Basically, if the prior operator and his assistant run bad bags, they are disciplined for their own error, and if the next shift operator comes on shift and does not immediately check to prevent further errors, both operators and their assistants are written-up. Put another way, if there was a bad pre-set by an earlier shift, the operator, assistant, and manager on that shift are disciplined for the bad bags they have actually run, and the next shift operator, his assistant, and his manager are disciplined if bad bags result from the new operator's failure to check the pre-set as soon as the new operator comes on duty. If it is a totally new set-up by the new shift operator, then only that operator, his assistant, and his ending manager, are disciplined. The degree of discipline for quality control flaws imposed upon any of the respective employees from either shift depended upon whether they already had gone through any of the three tiers of progressive discipline within the preceding 12 months. Neither race, national origin, nor union membership affected who was disciplined or the degree of discipline any employee, including Petitioner, received for producing non- conforming bags. On March 19, 2002, a random quality audit was performed by a manager. Petitioner received an oral warning which was written-up, because he had personal items (two packs of cigarettes) on his work bench/machine, and for failing to make on-going quality control checks of the weight of the bags his machine was running. No evidence of other employees also being written up for the offense of personal items in view was offered, but there also was no evidence others had personal items on their work benches in the same time frame without being written-up. Several witnesses testified that at one time having personal possessions in view had been permissible, but then a rule or instruction by the employer had prohibited this "in view" practice. Petitioner did not contest this discipline at the time. On April 3, 2002, Petitioner set the product up to run with the wrong sleeve paper and then went off shift. His feeder had brought him the wrong sleeve paper. The feeder had not been disciplined previously, so she received a write-up of oral coaching. Petitioner did not run non-conforming bags himself, but he failed to follow the preset procedure, so he did not catch the feeder's error. The wrong sleeve paper resulted in 12,500 defective bags being run on the following shift. These bags could not be used and had to be thrown away. Petitioner was orally counseled, by two supervisors, regarding his quality control flaw, and received a written warning for his failure to follow proper preset procedures. Eric Adkins, the operator on the next shift, and Adkins' helper, Larry Calhoun, both of whom actually ran the non-conforming bags using Petitioner's improper preset, and supervisor Eddie Jeffres, also were written-up for this error. The type of write-up each person got depended upon where his particular error ranked in the sequence of his respective number of prior errors, if any. Petitioner did not dispute this discipline at the time. Clifford Stuckey had come to work for Respondent about three years after Petitioner. This was perhaps early 1998. Petitioner and Stuckey were "on-the-job friends" and "house- visiting friends" in their private lives for awhile. Unfortunately, about a year before Petitioner was terminated, perhaps June 2002, they had a falling-out. Because Petitioner did not testify, the only first- hand explanation of what started their feud came from Stuckey. Apparently, Petitioner left his wife's car at Stuckey's home, with the intent of buying a second car for use as parts. The two men had an expectation that Mr. Stuckey, who was a good shade tree mechanic, would use the parts of the second car to fix Petitioner's wife's car. However, Petitioner's wife's car was left at Stuckey's home, without the "parts" car being supplied by Petitioner, for seven months, a period of time that was longer than Stuckey thought appropriate. Stuckey gave Petitioner an ultimatum that if Petitioner's wife's car were not removed, Stuckey would leave it on the road. When Petitioner and his wife arrived at Stuckey's home to get the car, Stuckey was still on the job at the plant. Petitioner and his wife phoned Stuckey from a neighbor's home, but Stuckey refused to leave work and come home with the key to his house so that Petitioner and his wife could get their car key. Harsh words were exchanged over the telephone, and Stuckey addressed Petitioner's wife disrespectfully. It is unclear whether Stuckey also made an oral threat of unexplained consequences against Petitioner over the phone, but it is clear that Stuckey was in no position to physically assault Petitioner or his wife over the telephone line. Later, Petitioner and his wife found their car in a ditch by the side of the road leading to Stuckey's home. Stuckey testified that for awhile after the car incident, Petitioner, while passing Stuckey's work station in Respondent's plant on his way to the restroom, would grab his own crotch or "flip me the finger." These are universal signs of contempt, designed to provoke another into striking the first blow. After one such crude challenge by Petitioner, Stuckey told Petitioner "if he did it again, I would whip his tail." It is presumed that Stuckey's foregoing on-premises oral threat was actually delivered in somewhat cruder and more urgent language than he admitted-to on the witness stand. Nancy Glass testified that shortly after the car incident, and still about a year before Petitioner's termination, Petitioner approached her and Robert McCullough in her office, and told them that he was "not saying he wouldn't or couldn't work with Stuckey," but that there had been an off- premises incident involving Petitioner's car being found on the road; that the dispute between himself and Stuckey had gotten "pretty nasty"; and that Stuckey had "smart-mouthed" him in the plant, as they had passed each other when Stuckey was going off shift and Petitioner was coming on shift. Petitioner acknowledged to them that no one had witnessed the "smart-mouth" incident. Petitioner did not tell Glass or McCullough that he had been threatened by Stuckey or that his feud with Stuckey involved any discrimination against him. He told them he did not want to have a sit-down discussion with Stuckey and that he did not want to make a big deal out of the incident, but he thought they should know about it. Petitioner said nothing about discrimination on the basis of his being Indian or Native American. He said nothing about any nicknames applied to himself. Since Petitioner did not wish to pursue the matter, Glass just told him to let them know if there were any further trouble between himself and Stuckey. Robert McCullough recollected, not that Petitioner had mentioned Stuckey in a meeting in Glass's office, but that Petitioner told McCullough while they were both on the plant's floor, that he and Stuckey had "a cussing" at one another off the plant premises. McCullough also did not recall Petitioner ever saying any incident had occurred on the plant premises or that Petitioner wanted to stay away from Stuckey. Petitioner said nothing to McCullough about discrimination, race, or national origin before his termination a year later. (See Finding of Fact 81.) For an indeterminate period of time, Petitioner and Stuckey avoided each other at the plant, and it was clear to some co-workers that there was "bad blood" between them. During this time, never proven rumors circulated on the floor that Petitioner and/or his wife had been threatened by Stuckey. A never proven rumor reached Stuckey that Petitioner and his wife had "telephoned" Robert McCullough about the car problem. However, Nancy Glass confirmed that Petitioner never filed a formal protest concerning his problems, whatever they might have been, with Stuckey, and he never said anything more about their feud to her for the year leading up to his June 2003 termination. Some co-employees never heard about the feud until after Petitioner's termination, when a never proven rumor started that Stuckey had sabotaged Petitioner's machine after Petitioner went off shift, thereby subjecting Petitioner to the final discipline of termination (see Findings of Fact 83-84) There was another never-proven rumor that Stuckey had rifled Petitioner's tool box while Petitioner was on suspension. Still other co-employees did not hear about the feud between Petitioner and Stuckey until a few days before the merits hearing on this case, when one party or the other contacted them about subpoenas. Most of the co-employees who had heard of Petitioner's and Stuckey's feud before Petitioner's termination thought the feud had blown over by the time Petitioner was terminated in June 2003. On December 3, 2002, Petitioner was given a "written warning" for failing to follow an order approval on a quality checklist which resulted in 1,500 defective bags being run. These bags had to be thrown away because they were created with a crease cut so that they could not be filled with the customer's product. The error should have been detected on the set up or on a later quality check. Petitioner was counseled regarding this error, as was the manager who approved the bag. Because Petitioner already had received an "oral warning" and a "written warning," his December 3, 2002, error should have resulted in Petitioner being placed on DML. However, Jackie Hodge wanted to work with Petitioner, rather than to have to retrain someone new. Hodge also felt that steps in the disciplinary tier system should not be duplicated. Therefore, he reduced Petitioner's December 3, 2002, write-up to a "coaching session" and required Petitioner to retrain on the order approval procedure for the type of bag he created and on its quality checklist procedures. Petitioner's manager was also counseled. On January 13, 2003, Petitioner was placed on DML, with one day's pay, for failing to perform quality check procedures which resulted in approximately 6,000 bags, with cuts on the main score, which had to be scrapped. If Petitioner had made the required quality checks, the error would not have occurred. Petitioner's union representative attended the meeting in which Petitioner was placed on DML. Jackie Hodge also gave Petitioner a card for confidential Employee Assistance counseling, which is an employee benefit. Petitioner's manager was also counseled and written-up, consistent with his own respective number of substandard performances. Petitioner returned to work with his DML letter dated January 24, 2003. The DML letter Petitioner composed and turned in did not set a specific date for formal review of his performance and improvement progress.9/ However, in the letter, Petitioner pledged to follow quality control procedures in the future. The letter was accepted by management, and Petitioner was put back to work. Because the management team had not been physically able to meet with Petitioner within one day to review his DML letter, and because DML is technically a suspension, Jackie Hodge arranged for Petitioner to be paid for a second day without his actually working. This was a deviation from the standard disciplinary policy, but it was a deviation to Petitioner's advantage. On May 16, 2003, although Petitioner's quality checklist accompanying an order indicated that quality checks had been performed every half hour, the sleeve construction and placement on the bags produced were not correct. As a result, nearly 7,000 defective tubes had to be thrown away. Petitioner, his manager, and his helper were all disciplined for this quality control error. One of the concerns of management at this stage was that Petitioner and his helper may have falsified their checklists showing that the quality control checks had been made when the checks were not, in fact, made. If the checks had been made, in reality, and not just the paper work filled-out, the error would have to have been "caught" in less than an hour, and far fewer non-conforming bags would have been created. If the checks had been made and apparent errors corrected at any stage, 7,000 non-conforming bags could not possibly have been created. Petitioner's union representative signed-off on his suspension. Petitioner met with Jackie Hodge, Ron Williams, Nancy Glass, Robert McCullough, and Leo Willoughby on May 22, 2003, while he was on suspension, pending probable termination for too many progressive disciplines within a 12-month period. Petitioner agreed that if they brought him back to work, he would follow all plant procedures, including quality control checks. Management side-stepped a union grievance and brought him back to work, with the understanding that if he again failed to follow instructions, he would be terminated. It was Jackie Hodge's job to schedule available workers' hours and shifts in order to keep Respondent's plant fully operational at all times. On June 9, 2003, he assigned Petitioner, as operator, and Stuckey, as assistant operator, to the same machine on the same shift. Stuckey testified, without refutation, that it was "just luck" he and Petitioner were not scheduled to work together on the same shift or same machine while their feud had been in progress. It was management's mind-set that in the absence of discrimination, "problems were not moved, but solved," and that any disputes arising off-premises were up to employees to work out on their own. The same was essentially true for personal, non-discrimination problems arising within the plant. There is a discrepancy in the testimony as to when, precisely, Jackie Hodge found out that Petitioner and Stuckey had their feud. Nancy Glass testified that she "thought" she told Hodge about the off-premises car incident and on-premises "smart mouth" incidents a year before June 9, 2003. (See Findings of Fact 57-58). Hodge, himself, testified that he knew nothing about the off-premises car incident and on-premises "smart mouth" remark until Petitioner was "on suspension." Because Petitioner was on suspension of some kind on January 13, 2003, May 16, 2003, and after June 9, 2003 (See Findings of Facts 67-70 and 79-81) it is hard to say with any assurance whether or not Hodge knew, when he assigned them to the same machine for June 9, 2003, that Petitioner and Stuckey had feuded a year before. Yet, regardless of when Jackie Hodge knew Petitioner and Stuckey did not get along, there is absolutely no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises, were motivated, affected, or prolonged because of discrimination against Petitioner as an Indian or Native American. Moreover, Stuckey testified that although he and Petitioner never sat down and formally discussed their problems or agreed to be friends again, he also testified, without refutation, that he thought that he and Petitioner had resumed their friendship by the time they were scheduled to work together on Petitioner's last night of employment, June 9, 2003. Finally, after Jackie Hodge posted the machine and shift assignments for June 9, 2003, neither Stuckey nor Petitioner approached him to request that he reassign one or the other of them to a different shift or machine. Petitioner and Stuckey worked the same machine on the same shift on June 9, 2003. When Petitioner and Stuckey went off shift on June 9, 2003, their machine was producing bags without a tuck-in sleeve, contrary to the POF. Defective bags were created with the glue under the valve, in the wrong position on the bag. If Petitioner and Stuckey had performed the required quality control checks, the machine should have been producing the correct type of bag when they turned it over to the next shift. Because they had left the incorrect set up, and because the operator coming on shift after them did not immediately catch their error, the machine continued to create unusable, non- conforming bags well into the following shift. Petitioner's June 9, 2003, quality checklist indicated that he had performed all the quality checks. However, the order ran at the rate of 2,000 bags per hour and the order called for quality checks to be performed every 15 minutes. Thus, during the six hours it took to run close to 12,000 bags, a total of 24 quality checks should have been performed by Petitioner, Stuckey, and the next operator and his assistant, each of which checks could have caught the error. Because the error was not caught during the quality check procedure, all 10,850 bags actually produced had to be scrapped. Petitioner and Stuckey were both disciplined for the June 9, 2003, problem. At this point, Petitioner's accumulated disciplinary record clearly required that he be terminated. As before, he was suspended, pending a decision on termination. Stuckey's situation had not reached that stage, and he received a written warning. After a review by McCullough and McCullough's superior, the decision was made to terminate Petitioner and he was notified by telephone. Petitioner filed a union grievance. During the review and grievance process, Petitioner admitted to McCullough that he and Stuckey had been signing off on the quality control checks for each other on June 9, 2003. Only after these reviews and grievance procedures were completed and the grievance was denied, did Respondent consider Petitioner "terminated," as opposed to "suspended." In all, the employer calculated that Petitioner was fully or partially responsible for 39,000 bad bags at approximately 33 cents per bag, or $12,870.00, worth of bad bags. Stuckey testified without refutation that he had not altered the machine in question. After some more operators (race and national origin unspecified) were disciplined for quality control errors on the same machine to which Petitioner and Stuckey had been assigned on June 9, 2003, it was discovered that a part on the machine was gradually slipping a little more each half hour so that the bags became increasingly non-conforming as time progressed. That discovery enabled Respondent to fix the machine, but the discovery did not alter anyone's prior discipline because timely quality control checks still would have prevented the production of so many non-conforming bags. There was no evidence that any of Petitioner's disciplinary problems was due to his race or national origin. There was no evidence that any of Petitioner's disciplinary problems or quality control issues arose from errors he made because of the nicknames he was called.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2004.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1991.
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, 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 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Jill Casey (Respondent) violated personnel rules adopted by the Pinellas County Sheriff's Office (Petitioner), and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent has been employed as a supervisor within the Petitioner's Child Protection Investigations Division (CPID). She was initially employed in 1991 as a detention deputy at the county jail. She became an investigator with the CPID in 1999 and became a supervisor in 2001. In 2002, the Respondent was admonished by Captain Dennis Fowler regarding a complaint of "inappropriate touching" that had been voiced against the Respondent by Kelly Johnson (Ms. Johnson), a CPID field trainer. The Respondent was Ms. Johnson's supervisor. Ms. Johnson had been the acting supervisor of the unit prior to the Respondent's assignment. Ms. Johnson testified at the hearing that the Respondent was a "touchy-feely person in general" and that there were routine shoulder touches during greetings. She also testified that the Respondent would routinely stand behind her and lean over the Respondent's desk at which time the Respondent's breasts would press against Ms. Johnson's back. Ms. Johnson also testified that the Respondent had inappropriately placed her hand on Ms. Johnson's thigh in 2002. She testified that as the two women sat in rolling office chairs across from each other to discuss a case Ms. Johnson was handling, the Respondent placed the Respondent's hand on Ms. Johnson's inner thigh within a few inches of her groin and left it there for up to 30 seconds. Ms. Johnson shared the office space with four or five other employees and testified that one employee, a male, was in the office at the time of the alleged incident and was seated and facing towards the wall. Ms. Johnson testified that she also discussed the thigh incident with various Sheriff's Department officials and with her husband. She also testified that she reported her concerns about the Respondent's physical behavior, including the thigh- touching allegation, to another CPID supervisor, Jayne Johnson, who apparently relayed at least some portion of the complaint to Captain Fowler. Ms. Johnson testified that she directly reported the allegations to Captain Fowler, but she did not file an official complaint about any of her allegations. Captain Fowler testified that he was unable to recall the conversation with Ms. Johnson. At the hearing, the Respondent denied that she touched Ms. Johnson's thigh. Although Ms. Johnson testified that she believed the thigh-touching incident was intentional and that she was extremely uncomfortable with the situation, she made no attempt to stop the Respondent at the time or to seek assistance from the other employee who was allegedly present in the room at the time. Ms. Johnson's testimony regarding the thigh-touching incident is not credible and is rejected. Ms. Johnson testified that at a time when the office furniture was being re-arranged to accommodate another desk, she positioned her desk so as to have her back towards the wall in an effort to prevent the Respondent from standing behind the witness. She testified that she would also pull out the writing tray on her desk and place her trash can under the writing tray to block the Respondent from coming around behind her. She testified that despite her efforts, the Respondent would sometimes push the writing tray into the desk and sit down on the trash can to meet with her. Captain Fowler testified that after talking with Jayne Johnson, he understood the complaint to involve the Respondent leaning over Ms. Johnson and physically placing her body against Ms. Johnson's. Captain Fowler was unable to recall discussing the matter with Ms. Johnson. He testified that there may have been "some other specific references to inappropriate touching," but that he was unable to recall particular details. It is reasonable to presume that had the complaints relayed to Captain Fowler included the allegation that the Respondent had placed her hand on Ms. Johnson's inner thigh within a few inches of her groin and left it there for upwards of 30 seconds, Captain Fowler would have recalled the information. Captain Fowler testified that he discussed the matter with the Respondent and recalled that the Respondent was cautioned about the failure to recognize personal boundaries of other employees. Captain Fowler believed that the Respondent understood that such behavior was not appropriate in the workplace. Neither Ms. Johnson's verbal complaint nor Captain Fowler's meeting with the Respondent was documented. The Respondent's job performance evaluations did not make any reference to the complaint or to its disposition. Ms. Johnson subsequently transferred out of the Respondent's unit. Rebecca Wilkinson was an employee of the CPID working in the same office building as did the Respondent. Ms. Wilkinson testified that, in 2002, as she stood in a copy room punching holes in paper, the Respondent passed through the copy room and intentionally "rubbed" Ms. Wilkinson's buttocks as she passed by. Ms. Wilkinson did not know who the Respondent was at that time. Because the copiers were located in an area between offices, employees often passed through the area as they moved between offices. Ms. Wilkinson testified that there was sufficient room in the area to pass without physical contact. Ms. Wilkinson testified that when the incident occurred, she reacted by stating "did you just fucking grab my ass?" Ms. Wilkinson testified that the Respondent did not reply, but smiled or "smirked" at Ms. Wilkinson and exited the area. Ms. Wilkinson testified that she was very uncomfortable with the contact. Despite her alleged discomfort that an apparent stranger inside the CPID offices had rubbed her buttocks, she did not report the incident at that time to anyone. The Respondent denied that the incident occurred. Ms. Wilkinson also testified that, at some point between May and August of 2006, the Respondent stood behind Ms. Wilkinson, who was seated at her desk, leaned against Ms. Wilkinson and pressed her breasts into Ms. Wilkinson's back. Ms. Wilkinson apparently was aware of the Respondent's identity by this time. Ms. Wilkinson testified that as she shifted to move away from the Respondent, the Respondent moved with her and maintained the contact, leading Ms. Wilkinson to believe that the contact was intentional. Although Ms. Wilkinson testified that she was "amazingly shocked" with the contact, to the extent that she was unable to tell the Respondent to stop, she did not report the incident at that time. At all times material to this case, Wandahka Goodridge was employed as a CPID Supervisor in a position similar to that of the Respondent. Ms. Goodridge has known and worked with the Respondent for approximately 15 years. Ms. Goodridge testified that the Respondent would routinely touch people during greeting, but that there were other incidents of "vivid and significant" physical contact with which Ms. Goodridge said she was uncomfortable. Ms. Goodridge recalled an incident "four or five years ago" where, as she stood with her back approximately one to one and one-half feet from an office wall, the Respondent passed between Ms. Goodridge and the wall, brushing her chest against Ms. Goodridge's back as she passed, even though there was sufficient space in front of Ms. Goodridge for the Respondent to pass without contact. Ms. Goodridge testified that she felt uncomfortable with the circumstances of the incident, believing it to be sexual in nature, and began to question her perception of the Respondent's routine physical contact. Ms. Goodrich also testified to an incident "prior to a year and a half ago but less than three and a half years ago" where the Respondent intentionally brushed by Ms. Goodridge in a hallway in a manner that Ms. Goodridge described as "much more . . . intense than the first body contact." Ms. Goodridge testified that the Respondent contacted Ms. Goodridge's buttocks with her "pelvic area," which she interpreted as a sexual advance. Ms. Goodridge testified that she thereafter began to attempt to "protect herself" from the Respondent by avoiding being in confined areas with the Respondent and keeping her back towards the wall if the Respondent was present. Ms. Goodridge thereafter perceived a lack of personal acknowledgement from the Respondent and testified that she felt angry because she believed that the Respondent was not speaking to her. The Respondent denied making any sexual advance or engaging in any such behavior towards Ms. Goodridge. Despite Ms. Goodridge's belief that the alleged physical contact was intentional and sexual in nature, she failed to report either incident at the times they allegedly occurred. It would be reasonable to expect that Ms. Goodridge, a supervisor within a law enforcement unit assigned the responsibility for conducting child protection investigations, would have noted the alleged behavior at the time it occurred and would have taken appropriate action to document the behavior or to verbally report the behavior to appropriate department authorities. Ms. Goodridge's testimony as to the alleged incidents was not credible and is rejected. In January of 2008, the CPID was engaged in changing shift assignments through a seniority-based bidding system. On the morning of January 24, 2008, Ms. Wilkinson and Ms. Goodridge were in the office together and were discussing the impending changes in shift assignments. Ms. Wilkinson was unhappy with the proposed alteration of her work shift assignment from day shift to night shift. She had discussed the issue with her sergeant (Hunchel), who called the Respondent and asked whether the Respondent was willing to trade shifts with Ms. Wilkinson. The Respondent declined to do so. Approximately two hours after the call from the sergeant to the Respondent, Ms. Wilkinson, crying, directly telephoned the Respondent to ask if the Respondent was willing to trade shifts. The Respondent again declined to do so. Ms. Wilkinson and Ms. Goodridge both testified that during their January 24th conversation, they discussed their discomfort with the Respondent's physical contact and alleged rumors of the Respondent's alleged behavior towards other employees. After the conversation ended, Ms. Goodridge took her car keys, left the office, entered her car, and began to drive around the office parking lot in an apparent panic. As she drove, she called a co-worker, Joan Trifilo, and reported the alleged conversation with Ms. Wilkinson. Then, without exiting from the parking lot, Ms. Goodridge returned her car to a parking space and saw Jayne Johnson exiting from her vehicle. Ms. Goodridge began questioning Jayne Johnson as to whether she was aware of allegations of inappropriate touching by the Respondent. The two women returned to the office building, whereupon Ms. Goodridge went to Lieutenant George Steffen's office and reported her complaint to him. Shortly thereafter on the afternoon of the same day, Ms. Wilkinson was summoned to the office of Lieutenant Steffen to discuss the Respondent's alleged behavior. Both Ms. Goodridge and Ms. Wilkinson provided written statements to Lieutenant Steffen on January 25, 2008, and the Respondent became aware on that date of the investigation into the allegations. The investigation eventually resulted in the dispute at issue in this proceeding. At the hearing, various other employees credibly testified that the Respondent pressed her chest against their backs as the employees were seated at their workspaces and materials on the desktop or computer screen were reviewed. While some of the witnesses, but not all, perceived the contact as intentional and sexual in nature, there was sufficient credible testimony to establish that the Respondent committed such contact with regularity after the 2002 meeting between Captain Fowler and the Respondent. CPID Investigator Viangelie Rodriguez was one of the additional witnesses who testified that the Respondent pressed her chest against the witness' back as the witness was working at her desk. Ms. Rodriguez also testified, credibly, that during a conversation regarding placement of a child for which Ms. Rodriguez was responsible, the Respondent told her that she was "fucking placing the child in the home" as directed by the Respondent. Ms. Rodriguez was offended by what she considered to be the Respondent's unprofessional language in dealing with the situation. CPID Investigator Sarah Pierce testified that, after dyeing her hair a different color, Ms. Pierce passed an office where the Respondent sat with another CPID supervisor and that the Respondent saw her and loudly stated that her new hair color made her "look like a slut." Ms. Pierce heard the other supervisor speak to the Respondent and heard the Respondent indicate that she was permitted to make the statement. Ms. Pierce, who testified that the incident made her feel "degraded" and "belittled," reported it to her supervisor, Ms. Trifilo, and to Sergeant Robert Mosley. Rather than file an official complaint, Ms. Pierce decided to address the matter directly with the Respondent, and the two women subsequently discussed the incident. Ms. Pierce testified that the Respondent apologized to her during the discussion. Sergeant Mosley also discussed the incident with the Respondent and advised her it had been inappropriate, a conclusion with which the Respondent admittedly concurred. Nonetheless, the Respondent was again verbally abusive towards Ms. Pierce when, during a later discussion related to case management, the Respondent called Ms. Pierce a "stupid shit." The discussion was conducted on a speakerphone and other CPID employees were present and involved. Ms. Pierce reported the comment to Sergeant Mosley and, thereafter, filed a formal complaint. The Petitioner's investigation into the complaint formed the basis for a portion of the dispute at issue in this proceeding. The Respondent admitted the verbal incidents about which Ms. Pierce testified. Jesteen Stewart testified that on more than one occasion, the Respondent passed the witness and made contact with the witness' body. Such contact included the Respondent's arm being placed on Ms. Stewart's waist and the Respondent's hands being placed on Ms. Stewart's hips. Ms. Stewart also testified that the Respondent rubbed the witness' buttocks and pressed her body against the witness while passing in a hallway, at which time the witness, who previously believed the contact to have been accidental, became convinced it was intentional and sexual in nature. She reported her concern to Ms. Trifilo, who testified that Ms. Stewart was distraught during the conversation. Although the Respondent denied rubbing her hands on any employee's buttocks, she stated that she may have placed her hands on someone to move them out of the way so that she could pass through a doorway. The evidence establishes that the Respondent inappropriately placed her hands on Ms. Stewart's buttocks to force Ms. Stewart to move, a gesture that for reasons personal to Ms. Stewart, was interpreted by her as sexual in nature. There is no evidence to suggest any reason that the Respondent could not have requested that Ms. Stewart move from the Respondent's path if Ms. Stewart blocked passage. Ms. Stewart subsequently minimized her interaction with the Respondent and would route her travel through the building to avoid passing near the Respondent's office. At times, she called in sick to avoid working with the Respondent and, eventually, was transferred to another shift to eliminate the contact with the Respondent. Pamela Wright, a child protective investigator who has worked with the Respondent, testified that at some time in 2000, while she was eating grapes, the Respondent picked up some of the grapes and threw then towards Ms. Wright's chest, in an attempt to toss them inside Ms. Wright's shirt. Ms. Wright believed the behavior to be sexual in nature because the grapes were thrown towards her breasts. She reported the incident to Laurie Gray, her supervisor. The Respondent could not recall the grape-tossing incident involving Ms. Wright. Ms. Wright also testified that the Respondent would sometimes massage her shoulders or rub her back, and the contact made her sufficiently uncomfortable to cause Ms. Wright to make various efforts to minimize being in the vicinity of the Respondent, but she did not file a complaint against the Respondent about the physical contact. Samantha Krenek, who has been employed for the Petitioner as a child protective investigator for about four years, testified that shortly after beginning her employment, she approached the Respondent, seeking to either have a document signed or notarized, at which time the Respondent placed her hand on Ms. Krenek's hip and left it there for a few seconds. Ms. Krenek believed the contact to be somewhat sexual and intentional because there was no need for the contact to have occurred. Ms. Krenek was uncomfortable with the contact and thereafter attempted to reduce her interactions with the Respondent by locating other supervisors to perform certain tasks, or by maintaining physical distance from the Respondent if there were no other supervisors available. At the hearing, the Respondent generally denied that she made sexual advances or had sexually harassed any of the testifying employees of the CPID. The Respondent testified that she was not aware that she was pressing her chest against the backs of seated employees while reviewing their work with them at their desks and attributed the contact to the limited space in the office. It is not plausible to believe that the Respondent's chest and breasts would be pressed against the back of another employee without the Respondent's knowledge, or that the entire office was so small as to preclude reviewing materials or computer screens with seated employees without making physical contact with them. The Respondent's testimony explaining the reason for the contact was not credible and is rejected. The Respondent engaged in a pattern of physical contact and behavior directed towards some CPID employees. The Respondent was cautioned about such contact in 2002 based on the complaint of another employee and, thereafter, was presumably aware that some employees were offended or intimidated by the behavior. Nonetheless, the Respondent continued to make physical contact with other employees, at least some of whom were offended or intimidated by the behavior. The evidence also establishes that the Respondent spoke disrespectfully to several employees, including Ms. Rodriquez and Ms. Pierce, and did so even after having been warned that her behavior was inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the disciplinary action taken by the Petitioner against the Respondent be sustained. DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of February, 2009. COPIES FURNISHED: Joseph M. Ciarciaglino, Esquire Ciarciaglino, Gell & Fiorentino, P.A. 6671 13th Avenue North, Suite 1B St. Petersburg, Florida 33701 Benjamin R. Welling, Esquire Ford & Harrison LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602-5133 James L. Bennett, County Attorney Office of the County Attorney 315 Court Street Clearwater, Florida 33756
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as a custodian.
Findings Of Fact Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent has been employed by Petitioner as a custodian since September 13, 2002. Respondent worked at Dunbar Middle School (Dunbar) until August 6, 2010, when she was involuntarily transferred to Lexington. Respondent worked at Lexington from August 2010 until her suspension on April 2, 2013. Respondent's personnel file documents that throughout her employment as a custodian, she has had problems with displays of disrespect and insubordination to her fellow employees and superiors. Respondent's disrespect and insubordination have been a consistent theme in written warnings and reprimands, incident reports, and conference summary reports. Respondent has been repeatedly advised in writing of the concerns with her behavior, instructed to stop the unacceptable behavior, and advised of disciplinary consequences if the behavior did not stop. The writings in turn refer to verbal communications with Respondent about the same subject addressed in the writings. The writings also reflect a consistent theme of Respondent's problematic behavior arising when a superior would attempt to address a problem with Respondent's job performance. For example, Respondent would be told to clean certain areas, but Respondent would fail to follow the directives, and then Respondent would become agitated and loud when confronted regarding her failure to follow the cleaning directives. The first memorandum, dated January 9, 2004, was issued by Respondent's then-supervisor, Carlos Morales: Despite previous conversations regarding your job responsibilities as a member of the custodial staff at [Dunbar], it has become necessary for me to apprise you in writing of a serious concern regarding your insubordination . . . On Monday, January 5, 2004, you were asked to vacuum all offices, rooms, and hallways of the administrative wing. Upon checking the administrative wing on the morning of January 8th, many areas appeared in need of vacuuming. During my discussion with you regarding this matter, your verbal, agitated response became loud, accusatory and insubordinate . . . It was then noted you were approaching other school personnel regarding the discussion and your accusations. Employees who are insubordinate are subject to disciplinary action. I sincerely want you to be successful at [Dunbar,] but this requires more effort in your assigned duties. The teachers, staff, and students depend on you to do your part in making this a clean and safe learning environment. Respondent's performance evaluation for the 2003-2004 contract year echoed Mr. Morales' concern, by finding that Respondent "inconsistently practiced" effective communications with co-workers and supervisors. The comments informed Respondent that she needed "to work on her communication in times of questions of job requirements." The same inconsistent rating in the same category, with similar comments, appeared in Respondent's evaluation for 2004-2005. Respondent received good performance evaluations for contract years 2005-2006 and 2006-2007. No behavior problems were documented in her personnel file during that time. Respondent's performance evaluation for 2007-2008, completed in March 2008, found that although Respondent's job performance was "adequate," her punctuality and attendance "continue to be" areas needing improvement. Later that same year, in June 2008, an incident report was prepared by the assistant principal to document an incident between Respondent and her then-supervisor, Pete Torres. According to the report, Mr. Torres tried to discuss a concern with Respondent about her chronic tardiness, but Respondent "became very loud and disrespectful towards her supervisor, Mr. Torres." The assistant principal met with Respondent to discuss the incident, and determined that Respondent "was disrespectful towards her supervisor. Disrespect towards any school employee will not be tolerated. Any type of future disrespect will result in [a] documented performance letter." Respondent was advised that a documented incident report would be placed in Respondent's personnel file. Respondent's performance evaluation for 2008-2009 found Respondent's performance inconsistent in the areas of punctuality and communications with co-workers and supervisors. The comments noted inconsistencies with Respondent's "interpersonal skills and attendance issues." Shortly after this performance evaluation, on July 23, 2009, the assistant principal prepared another incident report to document an incident involving Respondent. According to the documentation, at a mandatory meeting and training session for all of the custodians with district zone manager Debbie Greene to review summer cleaning processes and procedures, Respondent "became very loud, disrespectful and belligerent towards her direct supervisor, head custodian Randy McMillan." The assistant principal held another meeting with Respondent to discuss the incident, and he determined that Respondent was disrespectful towards her supervisor. He also reminded Respondent that "this was the second documented incident involving disrespect towards a supervisor in the past two years." Respondent was told again "that this behavior is unacceptable and would not be tolerated." Respondent was advised that this documented incident report would be placed in her personnel file. For the 2009-2010 contract year, Respondent's performance evaluation continued to reflect issues in the communications areas. Respondent was rated as "inconsistent" in the following areas: "responds appropriately to praise and constructive criticism"; and "communicates effectively with coworkers, supervisors, and school-based staff." The comments regarding these ratings were: "Ms. Rice continues to have trouble responding appropriately to constructive criticism. Cooperating with supervisors continues to be an area of focus." The documentation in Respondent's personnel file from her years at Dunbar portrays a pattern of similar behavior by Respondent in her dealings with a number of different supervisors. This documentation put Respondent on notice that her behavior was not acceptable. Nonetheless, Respondent did not take away from her years at Dunbar that her behavior was not acceptable and needed to change. When Respondent was asked if she recalled having problems with her supervisors and other employees at Dunbar, she responded: Of course I've had problems with -- from the other school, but it was only by speaking my opinion because if someone asked me something I'm going to tell them how I feel, but it's not nothing about like cursing them or whatever, just let them -- I'm giving them my answer. And then the way I talk, they say that I be disrespectful to them because I have a hot-pitched tone voice, but I don't mean no harm on nothing I say. I just trying to express my opinion. Even when I talk, I talk with my hands and it don't mean that I'm trying to be rude or nothing, I'm just used to expressing my feelings. Respondent was involuntarily transferred to Lexington shortly after the beginning of the 2010-2011 contract year. The circumstances of this transfer were not established in the record. Respondent began working as a custodian at Lexington on August 9, 2010. She worked during the day over the summer, as did all of the custodial staff. When school was in session, Respondent was assigned to what was variously described as the afternoon, evening, or night shift (hereafter referred to as the "night shift"), working from 2:00 p.m. until 10:00 p.m. At Lexington, the building supervisor was in charge of the custodial department, and was the direct supervisor of the custodial staff. The work hours for the building supervisor position were from 8:30 a.m. to 4:30 p.m. Therefore, during the school year, the building supervisor's work day overlapped with the night shift by only two and one-half hours. After the building supervisor left for the day, the head custodian served as acting supervisor of the night shift custodians. The head custodian was considered the liaison between the building supervisor and the custodians. The head custodian would receive instructions and directives from the building supervisor in the afternoon, and the head custodian was responsible for giving directives to the night shift custodians and supervising their work to ensure that they carried out the directives. The head custodian position at Lexington was not a managerial position; the head custodian did not have authority to discipline the other custodians. However, by all accounts, the head custodian was vested with authority to give directives to the custodians working the night shift. The head custodian was reasonably expected to act as supervisor of the night shift custodians after the building supervisor left each day. Otherwise, these employees would be left unsupervised for two- thirds of their work day. During Respondent's first year at Lexington, the building supervisor was Jack Duffy and the head custodian was Rosa Valentin. According to Respondent, that year was "okay," in that she did not have any problems at work. However, according to Respondent's performance evaluation, which recorded her absences and tardy days through March 2011, Respondent missed a lot of work. In fact, the evaluation comments refer to a meeting with Respondent in February 2011 to address concerns with her attendance; improvement in Respondent's attendance was noted in the month following that meeting. Respondent had only been working at Lexington for seven months when assistant principal Jason Peters drafted Respondent's performance evaluation for the principal, Linda Caprarotta, to review and sign, in accordance with the standard practice. For this short period of time, during which Respondent frequently was absent and late, Respondent's performance was found inconsistent in the areas of using leave only when necessary and punctuality, but her job performance otherwise was found to be effective. However, the Lexington principal was not satisfied with the overall performance of the custodial department for the 2010- 2011 contract year, because the school was not being cleaned well. Ms. Caprarotta determined that the building supervisor, Mr. Duffy, lacked appropriate management skills. She found him to be too lax with the custodial staff. He was not comfortable supervising, giving directives, or confronting the custodians when their work was unsatisfactory. Therefore, Mr. Duffy was let go at the end of the 2010-2011 contract year. On July 6, 2011, Ms. Caprarotta hired Mack Farmer to replace Mr. Duffy as the Lexington building supervisor. Mr. Farmer had the management experience Ms. Caprarotta was looking for, having run his own cabinet manufacturing company for 25 years. Ms. Caprarotta informed Mr. Farmer of her expectations for better-quality cleaning services for her school, and her expectation that he would exercise stronger supervisory responsibility than the prior building supervisor to ensure that custodians were doing their jobs. The credible evidence supports a finding that before Mack Farmer was hired, the custodial staff at Lexington had a relatively easy time, with little expected or demanded of them by the building supervisor. The night shift workers, including Respondent, essentially had free rein to do things their own way, but their own way was not getting the job done. As Respondent put it, "Really I wasn't sure that they was watching me or anything, but they never told me that I wasn't -- that I needed to do better or anything[.]" Although Respondent's attendance had improved after a meeting was held in February 2011 to address the problem, the improvement was short-lived. In addition, problems had become apparent with Respondent's performance when she was there working. On July 13, 2011, Ms. Caprarotta and Mr. Peters held a meeting with Respondent "to address absenteeism/tardiness and work performance." The meeting was documented in a conference summary performance report and placed in Respondent's personnel file. According to the report, with regard to Respondent's work performance issues, Respondent was reminded that she was "expected to work thoroughly and continue to work/clean during her designated work times." Respondent testified that everything fell apart after Mr. Duffy was replaced with Mr. Farmer. Respondent was not happy with the change, and did not agree with it: Q: You heard Ms. Caprarotta, she wasn't happy with Mr. Duffy, she didn't think that he was requiring satisfactory services from the custodial staff, you heard that, right? A: Yes, I did. Q: And do you agree that it's the principal's choice as to who she wants as the building supervisor? A: Well, I don't agree, but I know that that's what I heard that that's mandatory that the principal have all the say-so on who she wants to be hired in her system. * * * Q: Okay. So whatever reason she had for replacing Mr. Duffy, is that your concern? A: No, it's not my concern, but it come down to my concern whenever she replaces Mr. Duffy and end up -- it's a stress-free environment and then it's very stressful on the people that I'm working under. According to Respondent, Mr. Farmer approached her on his first day of work and told her that he knew who she was and that she had better be careful because they were trying to get rid of her. The more credible testimony was a bit different from Respondent's description. Ms. Caprarotta credibly testified that when Mr. Farmer was first hired, she talked to him about the broader issue of the lack of cleanliness and need for better management of the custodial staff. She briefed Mr. Farmer about all of the staff members whom he would be supervising; Respondent was included, but not singled out. Mr. Farmer credibly testified that he spoke with Respondent not on his first day, but shortly thereafter, to tell her that she needed to change her behavior and improve her performance or she was going to lose her job. He had many conversations with Respondent, trying to get her to do her work, be a team player, and improve her behavior. Respondent acknowledged that she took away from Mr. Farmer's comments to her that she needed to improve: "I figure I better do a good job." In August 2011, shortly after Mr. Farmer began as building supervisor, Respondent was involved in an altercation with Rosa Valentin, then-head custodian. Respondent was called in for a conference with the principal, assistant principal, and Mr. Farmer. A conference summary performance report dated August 10, 2011, documented the incident and the conference, at which Respondent was reminded that one of her job requirements was that she must have the ability to work well with others, and that Respondent was expected to do so. Respondent was informed that her failure to comply will result in further disciplinary actions. The altercation addressed by the August 2011 conference summary performance report was described in somewhat-conflicting terms by several witnesses. The more credible testimony established that Respondent confronted Ms. Valentin, who was weeding the flower beds next to the school building. Another custodian was standing next to Ms. Valentin. Respondent made negative comments critical of Ms. Valentin, questioning why Ms. Valentin was not making the other custodian help with the weeding, and suggesting that Ms. Valentin would have made Respondent help if it were Respondent standing next to her. Respondent and Ms. Valentin argued, and Respondent called Ms. Valentin a "b****." Ms. Valentin went inside to the main office to report the incident to the principal. Respondent followed Ms. Valentin into the main office, where Respondent resumed her verbal assault on Ms. Valentin. Respondent was the instigator and the aggressor, and her behavior was completely inappropriate. Respondent did not deny the essential facts of this altercation. She did not deny having called Ms. Valentin a "b****." This incident stands in marked contrast to Respondent's testimony that she was never disrespectful and was just expressing her opinions. A custodian calling a head custodian a "b****" is no mere expression of opinion. Respondent's friend, Claytrina Griffin, another custodian who was with Respondent during the altercation, testified without a great deal of credibility that she did not see anything wrong with Respondent's comments. However, Ms. Griffin admitted that, unlike Respondent, she did not say anything to Ms. Valentin because whether Ms. Valentin required the other custodian to help her weed or not was none of Ms. Griffin's business. Shortly after this incident, Ms. Valentin requested to be moved to the day shift for personal reasons, even though that would mean she could no longer be the head custodian whose job was to supervise the night shift custodians. Ms. Valentin's request was granted, and her position was downgraded to a regular custodian at a lower pay grade. After advertising and interviewing candidates for the head custodian position, Jeff Hancock, who was a custodian at a different school, was hired as Lexington's new head custodian. Mr. Farmer and Mr. Hancock had specific ideas about how the cleaning should be done by the custodians. Just as Respondent expressed her dislike for the new, more demanding building supervisor, Respondent also made clear that she did not like the new head custodian. Ms. Griffin echoed Respondent's sentiments, complaining that Mr. Farmer and Mr. Hancock were demanding. Ms. Griffin complained that Mr. Hancock would spend too much time (which she quantified as five minutes), hanging around to tell Ms. Griffin what to do and how to clean, and repeating the same directive over and over. Both Respondent and Ms. Griffin testified that Mr. Farmer and Mr. Hancock had their own ideas regarding how they wanted the custodians to clean and neither Mr. Farmer nor Mr. Hancock liked it when Respondent or Ms. Griffin would clean their own way, as they apparently had been able to do when they had enjoyed lax supervision or no supervision at all. The key difference between these two custodians, however, is that Ms. Griffin would keep quiet and would just do her work in the way that Mr. Farmer and Mr. Hancock wanted it done. As a result, Ms. Griffin was able to finish her assigned cleaning duties by the end of her shift, even when she and the other custodians at work had to absorb extra duties because of absent workers. Respondent did not respond appropriately to being told how to do her work by Mr. Farmer and Mr. Hancock. Instead, Respondent responded with displays of the same type of behavior for which she had been taken to task when she worked at Dunbar. On December 16, 2011, Ms. Caprarotta issued a letter of reprimand to Respondent for being insubordinate and disrespectful to her supervisor, Mack Farmer, on December 7, 2011. Mr. Hancock was out that day, so Mr. Farmer stayed at work for the night shift. Mr. Farmer gave Respondent specific directions regarding cleaning her assigned rooms, telling her that she was to go into each room and clean it completely before going to the next room. Instead of following directions, Respondent went up and down the hallway, complaining and yelling at Mr. Farmer. Mr. Farmer directed Respondent to stop, but she continued. Respondent yelled at Mr. Farmer from one end of the hallway to the other, and followed him until she was in his face, yelling at him that he gave her too much work. If Respondent had not wasted the time she should have spent cleaning to walk up and down the hallway, loudly "expressing her opinion" to her supervisor, she might have found there was not too much work. That same night, in the middle of her shift, not during a break, Respondent went to Mr. Farmer's office to fill out a vacation request. Mr. Farmer instructed her to stop; he told her that she should not take the time to fill out a vacation request when she had not finished her cleaning assignments. Respondent ignored his directive, and kept filling out her request. As Mr. Farmer aptly described it, "This was [Respondent] doing what she wanted to do instead of doing her job." As a result of Respondent's failure to follow Mr. Farmer's multiple directives on just this one day, Respondent failed to complete her cleaning duties by the end of her shift. In the December 16, 2011, letter of reprimand, Ms. Caprarotta noted that Respondent had engaged in the same kind of insubordinate and disrespectful behavior on January 5, 2004, June 26, 2008, July 23, 2009, and August 8, 2011, and each time, Respondent's outbursts targeted a different supervisor. Ms. Caprarotta gave Respondent the following directives: Effective immediately, you are expected to treat your supervisor with respect. At no time should you be screaming or yelling in the work environment. You are expected to follow directives given to you by your supervisors. You are expected to finish all work assigned. Failure to comply with this directive will result in further disciplinary action up to and including termination. Despite the directives in the December 16, 2011, letter of reprimand, Respondent engaged in the same type of behavior, which was the subject of another conference summary performance report issued on February 16, 2012, and placed in Respondent's personnel file. The subject of this conference was Respondent's disrespect toward Jeff Hancock, the head custodian, described in the summary as Respondent's "Designated Supervisor . . . when the Building Supervisor is not present." When Mr. Hancock had given Respondent directives, she refused to listen to him and was rude and disrespectful. Respondent had to be reminded again that she was required to work well with others and was required to respect her designated supervisor by following directions. In the early spring of 2012, Mr. Peters drafted Respondent's performance evaluation for the 2011-2012 contract year. This evaluation reflected a marked deterioration from the prior partial-year's evaluation, consistent with the documented problems added to Respondent's personnel file. Respondent did not improve in the dependability section, receiving two inconsistent ratings. In the job skills section, Respondent's performance was deemed inconsistent in all five areas measured. Likewise, Respondent's performance was inconsistent in five of the seven areas in the interpersonal skills section; her two effective ratings in this section did not involve communications or interactions with others; instead, Respondent was found effective in dressing in an appropriate manner and being clean and neat in appearance. The evaluation comments reflected that Respondent "had issues with respecting authority," although, as before, she had shown improvement following the most recent meeting. In addition, Respondent was told that she needed "to improve her quality of work and be more efficient." Finally, her problems with tardiness and absences were noted. In May 2012, the Lexington principal made a referral to the DPSE to investigate Respondent for misconduct, including excessive absenteeism, disrespect, and insubordination. The principal testified that she made the decision to make the referral to the district level because all of the school-level meetings, discussions, written reports, and reprimands had been ineffective in bringing about sustained improvement in Respondent's behavior and performance. The details of the 2012 investigation were not established in the record. However, in accordance with the collective bargaining agreement between Respondent's union, the Support Personnel Association of Lee County (SPALC), and Petitioner (hereafter referred to as the SPALC agreement), the investigation file was provided to Respondent and her union representative, and then a predetermination conference was held. The predetermination conference in July 2012 was attended by Ranice Monroe, director of the DPSE, Respondent, and her union representative, Mr. Rushlow. In the predetermination conference, Respondent and her representative were given the opportunity to respond to the investigation material. The 2012 investigation concluded with a finding of probable cause to take disciplinary action against Respondent. Respondent received a formal letter of reprimand as disciplinary action for excessive absenteeism. In addition to the formal disciplinary action, Petitioner took other action to address Respondent's disrespectful and insubordinate behavior. Mr. Rushlow and Ms. Monroe went to Lexington to work with Respondent for the purpose of retraining, or "coaching," her. They gave Respondent instructions on how to relate to, and communicate better with, people. As Ms. Monroe recently reminded Respondent (in the 2013 predetermination conference that was the precursor to this disciplinary action), the hope was that Respondent would respond to this informal coaching assistance by improving her behavior.2/ Instead of improving her behavior in response to the coaching assistance, Respondent made no effort to change, because she continued to deny that there was any problem with her behavior: Q: Do you remember Mr. Rushlow and others coming out to the school and to try to coach you on how to relate to other people? A: They had to come and coach me simply because they was making false accusations so I had to go to the meeting and attended the meeting. That don't mean that happened. That do not mean that I talk back to them and that don't mean that happened. The ones that say that I talked back, it was just that I was expressing and giving them my point of view. But disrespecting them? That wasn't really no disrespect[.] According to the Lexington principal, after the July 2012 predetermination conference, Respondent had clear instructions to return to work, work hard, and keep her comments to herself; however, Respondent did what she was told for only about two weeks. She then fell into her old pattern of refusing to take instruction from her supervisors, Mr. Farmer and Mr. Hancock, and talking back to them. As an example, Ms. Caprarotta got involved in an incident in September 2012 when Respondent would not listen to Mr. Hancock's instructions regarding the order in which Respondent was supposed to clean her assigned rooms. On several occasions, the kitchen science teacher had complained that her room was not being cleaned and she had to sweep and mop it herself. Meanwhile, Respondent was not able to regularly finish her cleaning assignments by the end of her shift, but Mr. Hancock would require her to clock out and leave her work unfinished, because overtime pay was not allowed without prior approval. In an attempt to partially address these problems, Mr. Hancock instructed Respondent to clean the kitchen science classroom first, but Respondent responded rudely, yelling at him. Ms. Caprarotta was informed, and spoke with Respondent about the incident. Respondent told the principal that "that man does not have to tell me what I need to do; you should hear what he says to me, he treats me like a slave." When Ms. Caprarotta asked what exactly she meant by that, Respondent replied: "He keeps trying to tell me what to do." Ms. Caprarotta informed Respondent that Mr. Hancock is her supervisor during the night shift and she had to listen to him and comply because her rooms were not getting clean every night. At this point, Ms. Caprarotta instructed Mr. Hancock to keep Mr. Farmer, Mr. Peters, and herself informed regarding Respondent's behavior and job performance. In addition, she and Mr. Peters began following up to inspect areas where cleaning problems were called to their attention, so that they could judge for themselves. While Respondent contends that she was being unfairly targeted for scrutiny, the credible evidence established that Respondent's performance was reasonably subjected to scrutiny, brought on by Respondent's own failure to perform well, and by her inappropriate outbursts directed to her supervisors when they tried to address the problems with her work. On November 20, 2012, Mr. Farmer inspected the school and provided Mr. Hancock with an inspection report that listed items and areas not cleaned sufficiently during the previous evening shift. The boys' and girls' bathrooms on the first floor, which were Respondent's assigned areas, were on the report, with specific items listed that were not cleaned.3/ Mr. Farmer also reported the cleaning deficiency to Mr. Peters, and had Mr. Peters personally inspect the first floor bathrooms. Mr. Peters agreed with Mr. Farmer's report that the bathrooms had not been cleaned properly. Mr. Hancock gave Respondent the list of items that she had failed to clean adequately the previous day. Respondent did not complete the items on the list that day, and Respondent took leave the next day, so Mr. Hancock had to finish the cleaning. Although Respondent first claimed that she was completely unaware that there were any problems with the quality of her cleaning in the fall semester of 2012, she admitted that she remembered Mr. Hancock going over a list of things that had not been cleaned in the bathrooms. Respondent minimized the problems, claiming that they were nothing substantial. Respondent's claim was not credible; Mr. Farmer observed such problems as not emptying and cleaning the feminine sanitary receptacles, and not cleaning dirt and grime on stall doors and door handles that was built up to the point where it was clear that the cleaning had not been done properly in weeks. On one afternoon after school in mid-October 2012, then-assistant principal Lisa Eastridge went to the "time-out room" to return some books. She found the room locked, with the lights off. She unlocked and entered the room, and started walking across to put away the books she was returning, when she was startled to see that Respondent was there, seated at a student desk, with her head down on the desk. At about the same time, Respondent realized that Ms. Eastridge was in the room and jumped up. Ms. Eastridge asked Respondent if she was all right, and Respondent said she was fine. Ms. Eastridge put the books down and left. Thereafter, she checked with Mr. Farmer to find out if Respondent was on her break at the time, and confirmed that it was not Respondent's break time. The next day, after Respondent learned that Ms. Eastridge had spoken to Mr. Farmer about the incident, Respondent sought out Ms. Eastridge to tell her that she had not been sleeping. Ms. Eastridge told Respondent that she did not tell Mr. Farmer that Respondent had been sleeping, but told him that she found Respondent in the time-out room with the door locked and lights off, and Respondent's head down on the desk. At the hearing, Respondent claimed that Ms. Eastridge was lying about this encounter, although Respondent offered no reason why Ms. Eastridge would lie. Respondent claimed that the actual encounter between herself and Ms. Eastridge in the time- out room was over the summer, that there were no desks in the time-out room because they had been removed so the floors could be done, that Respondent was in the bathroom off of the time-out room, and that Ms. Eastridge found her there when she exited the bathroom. While the encounter Respondent described may have also occurred, Ms. Eastridge's description of a different encounter in mid-October 2012 was credible, and not credibly refuted by Respondent. Later in October 2012, Ms. Eastridge was exiting a stairwell when she observed Respondent in a confrontation with Mr. Farmer. They had their backs to her, and so they did not see her. Mr. Farmer was speaking politely and softly, attempting to go over the cleaning procedures with Respondent, explaining that she needed to clean the home science classroom first and then make sure the bathrooms are clean. Respondent responded loudly and disrespectfully, yelling at Mr. Farmer that she knew what she was supposed to be doing, and arguing with him as he was gently trying to explain why she needed to clean the areas in a certain order. Ms. Eastridge stood there for a moment to see if she needed to intervene, but Respondent and Mr. Farmer proceeded down the hallway away from Ms. Eastridge, so she just went on her way. Ms. Eastridge also observed Respondent in similar confrontations with Mr. Hancock. On one occasion during the 2012 fall semester, Ms. Eastridge came upon Respondent and Mr. Hancock in the hallway outside of the custodial office. Mr. Hancock was trying to talk to Respondent about making sure to clean the bathrooms properly. Respondent, however, was being very loud and argumentative, yelling and screaming at Mr. Hancock. Ms. Eastridge stopped to ask Mr. Hancock if she needed to intervene and assist. Respondent attempted to downplay the confrontation, saying that they were just having a conversation. Ms. Eastridge advised Respondent that she needed to conduct her conversations in a peaceful, quiet, respectful tone of voice, not yelling and screaming at Mr. Hancock. Respondent was involved in another confrontation with Mr. Hancock on December 19, 2012. At the beginning of her shift that day, Respondent had cleaned the courtyard adjacent to the cafeteria, wiping down the outdoor tables and removing the trash. She then joined the other custodians to clean the cafeteria. Respondent noticed that teachers were bringing food out to the courtyard, and she learned that they would be meeting with parents for a parent-teacher organization (PTO) meeting. Respondent got angry and started yelling at Mr. Hancock across the cafeteria that she was not going to clean up again after the teachers were done. Respondent admitted that she asked Mr. Hancock "what type of head custodian are you," and told him that it was dumb to send her out to clean the courtyard when the teachers were going out to mess it up again.4/ Respondent did not believe she was disrespectful to Mr. Hancock: "I'm only expressing and all I told him was that was a dumb -- you know, like that was a bad choice that you made[.]" After Respondent "expressed her opinion" that Mr. Hancock was a bad head custodian who made dumb choices, Mr. Hancock just walked away. Respondent followed him to make sure he was not going to report what she had said to the principal. Mr. Hancock testified credibly that Respondent was shouting at him that he had better not report her to the principal. On December 21, 2012, Mr. Farmer inspected the classrooms before the winter break. He found that several classrooms in Respondent's assigned areas had not been dusted, cleaned, or vacuumed for quite some time. Mr. Farmer had Ms. Caprarotta inspect the rooms, and she found them noticeably dirty, with corners full of dust, dirt, and paper scraps, and shelves and counters "filthy with dust." When Mr. Farmer spoke with Respondent about these problems, Respondent blamed the teachers for doing things in the classrooms to make them so dirty. Mr. Farmer ended up cleaning the rooms himself. Mr. Farmer testified credibly that Respondent was repeatedly insubordinate to him by refusing to follow his directives, and by telling him that he was not her boss and could not tell her what to do. When Mr. Farmer tried to tell Respondent to do her job, she would laugh at him and tell him that she was going to bring harassment charges against him. Respondent denied that she ever told Mr. Farmer he was not her boss, but admitted telling him that "he really not no professional on being no building supervisor. He might have supervised where he had his cabinet shop, but you're not doing it right." Respondent also denied laughing at Mr. Farmer, but admitted threatening him with harassment charges when he would tell her to do her job. As evident from the following exchange, Respondent ultimately admitted that she did not accept direction from either Mr. Hancock or Mr. Farmer, even though she acknowledged that Mr. Farmer was her direct supervisor; Respondent then tried to blame the union for her own refusal to follow Mr. Farmer's directions, as if the union somehow had led her to believe she could be insubordinate: Q: Barbara, do you not believe that a supervisor or boss should be able to direct the people that they supervise? A: I believe so. That's why I give Ms. Caprarotta so much respect because she's our boss, but because she acted like a boss, she performed like a boss. But Mr. Farmer and Mr. Hancock, they didn't perform like they should be telling me nothing, and I should have went to the principal. I didn't never do it. I should have went to the principal with all of this, but I never did it. * * * Q: Doesn't it mean anything to you based on the respect that you have for Ms. Caprarotta that she hired Mr. Farmer and that should mean something? A: Well, as we talking now it means something now. I have respect now. But then I wasn't thinking that way. I wasn't thinking that way. I was only thinking that she's just my boss, no one else, because the union kept throwing in my face that John [sic: Jeff] Hancock, he's not your boss, he can't tell you this, and this all I was going on. You know, you know, like miss -- like Bob Rushlow said, oh, I'm gonna file a grievance I don't even know what all the half of this stuff is. Q: Do you feel like the union misled you? A: That's right. I feel like they did. Maybe I wouldn't be doing the type of acts like I was doing. Ms. Caprarotta credibly testified to the lengths that Lexington personnel went to in their attempts to curb Respondent's misbehavior and improve her work performance, including in the performance conferences detailed above and in informal conferences with Respondent and union representatives. In one of the informal conferences with Respondent and her union representative during the 2012 fall semester, attended by Ms. Eastridge, Respondent got angry and belligerent in response to Ms. Eastridge's description of Respondent's confrontation with Mr. Farmer (addressed in paragraph 50 above). Respondent slammed her hands on the table angrily and yelled at Ms. Eastridge that she was not even there. Ms. Caprarotta personally met with Respondent many times to address the numerous incidents brought to her attention during the 2012-2013 contract year. Ms. Caprarotta tried to coach, counsel, and direct Respondent to control her temper, listen to her superiors, and just do her work. Ms. Caprarotta told Respondent that if she did not heed the warnings she had been given time and time again, she was going to lose her job. Ms. Caprarotta testified that she liked Respondent and tried hard to get her on track. For a brief period after each time they met, Respondent's performance and attitude would improve. However, Respondent would always slide back into the unacceptable pattern of disrespect and insubordination directed to the head custodian and the building supervisor, and not doing a good job cleaning her assigned areas. On January 9, 2013, Ms. Caprarotta gave Respondent a 30-day notice that she would be reassigned to the day shift. The principal made this decision because she believed it was necessary to micromanage Respondent, keeping her under the watchful eyes of the principal, assistant principals, and building supervisor. There was not really a day-shift position for another custodian, and the reassignment would leave the night shift short one custodian. This move was, therefore, not so much of a solution or chance for redemption as it was a gesture of defeat. Before the reassignment went into effect on February 11, 2013, the Lexington principal made a referral to the DPSE, requesting that Respondent be investigated for insubordination and inadequate job performance.5/ As Ms. Caprarotta explained to the DPSE investigator: I have been in an administrative position for the past 16 years. I have spent more time dealing with [Respondent] than I have with any others combined. The situation is continual with little to no progress. . . . [When the shift change goes into effect], I will have to micromanage her all day every day. . . . I do not need her during the day and the night shift will now be a person short, however, I will not tolerate the insubordinate and unprofessional behavior towards my staff any longer. Respondent was under the impression that she was doing well on the day shift. However, the arrangement could not last; Respondent's job position was needed for the night shift, for cleaning empty classrooms and bathrooms when students and teachers were gone for the day. Respondent made clear in her testimony at the hearing that she is unwilling to change her behavior. During the 2012- 2013 contract year, up to the date of her suspension, Respondent was repeatedly confrontational and disrespectful with her direct supervisor, with the head custodian when he was her acting supervisor, and with at least one assistant principal. Respondent repeatedly refused to follow reasonable directives from her direct supervisor. Respondent repeatedly refused to follow reasonable directives from the night-shift acting supervisor. Respondent repeatedly refused to follow reasonable directives from the principal, such as the directive that Respondent must take direction from the head custodian. Respondent attempted to establish at hearing that the 2013 investigation took her by surprise, because she had no idea that anyone had a problem with the quality of her work or with her behavior during the 2012-2013 contract year. This claim was not credible, and was refuted by Respondent's own testimony that was diametrically opposed to the claim of surprise. Respondent testified that she knew that her performance was under scrutiny, because Mr. Farmer and Mr. Hancock watched everything she did and picked on every little thing. Quite plainly, then, Respondent was aware that her supervisors were not pleased with the quality of her work, but she did not attempt to address their criticisms. Instead, Respondent viewed the criticisms and cleaning directives as provocation for her to respond angrily and disrespectfully. According to Respondent, Mr. Farmer and Mr. Hancock made her be disrespectful and insubordinate to them; they knew that if they gave her directions, she would "snap" and refuse to follow their directions. As Respondent described it: It was always whatever you have to do they would -- while I'm doing it they would steady coming in repeating the same thing over just torturing me when I already done heard them say it. And so that make me -- provoke me to snap and say I done heard that, just get out of my face, I done heard that or something like that. It's just like it was a ongoing, never stop situation on just nagging me, that's all. So it made me felt like . . . I was doing my job, but how can I finish in time if they steady come every other 30 minutes in the room saying speed up or saying the same thing over, I want you to do this or then the next one will say the same thing. Notwithstanding Respondent's perception, a supervisor's directives to a subordinate employee regarding how the supervisor wants the employee to carry out his or her job does not constitute "nagging." Rather than treating such directives as nagging or as provocation that had to be met with a harsh response to "get out of my face," Respondent should have curbed her tongue, accepted the supervision, and followed the directives as part of Respondent's job responsibility. Respondent was not entitled to free rein to work in the manner she saw fit, nor was Respondent entitled to harshly criticize her supervisors when they sought to direct Respondent in the manner in which she was to carry out her job. No credible evidence was presented to establish that the directives given to Respondent by either Mr. Farmer or Mr. Hancock were unreasonable. Instead, Respondent just disagreed with how her supervisors wanted her to perform her assignments, and bristled simply because they would tell her what they wanted her to do. For example, when Respondent was having trouble cleaning all of her assigned rooms by the end of her shift, Respondent was directed to clean her rooms in a certain order so that the most important rooms, or the rooms that had been the subject of complaints (such as the home science classroom), would be done first. Respondent disagreed with this directive, and rather than simply following orders, she argued with the directive, violated the directive, and then argued some more. Respondent told her supervisor, Mr. Farmer, that he was not qualified for his job and had no business telling her how to clean. At the hearing, Respondent stubbornly stuck to the mantra that she was only expressing her opinion when asked, and did not intend any disrespect. Respondent's claim was not believable. Surely, Respondent does not expect anyone to believe that Mr. Farmer asked Respondent for her opinion regarding whether he was qualified to supervise her. Respondent's comments were blatantly disrespectful and grossly insubordinate. Perhaps Respondent was capable of doing a good job cleaning, but with all of the time and energy she spent complaining, criticizing, and talking back to her supervisors, she proved incapable of doing her work in the remaining time. And even though Respondent acknowledged that she had problems finishing her assigned work by the end of her shift, Respondent reacted badly whenever her supervisors would tell her to hurry up, that she needed to pick up the pace in order to finish in time. Respondent reacted to such comments as provocation for another round of angry responses, yelling at her supervisors that she did not need to hear "that junk" and that they should "get out of her face." Respondent attempted to blame her inability to finish her assigned cleaning duties by the end of her shift on the extra cleaning duties she had to absorb when other custodians were absent or tardy. Respondent attempted to prove that the custodial staff at Lexington had an unusually high number of absences and tardy days during the 2012-2013 contract year, and therefore, her inability to finish her cleaning was the fault of administration for not hiring more staff. The credible evidence did not prove Respondent's theory. Attendance data was offered only for the 2012-2013 contract year; no comparative data was submitted for other years. Testimony by school officials was that the custodial staff always took a good number of days off, especially near weekends and holidays, and they were entitled to their leave time; 2012-2013 was not considered to be an unusual year in this regard. Although the attendance data offered by Respondent showed a fair amount of absences in 2012-2013, most of the absences by night shift custodians did not take place until after February 8, 2013, which was Respondent's last day working the night shift. Respondent pointed to one custodian, in particular, who missed many whole and partial days due to an on-the-job injury. However, most of those absences were after February 8, 2013. Therefore, the absences of custodial staff were not shown to be the cause of Respondent's recurring inability to finish her assigned cleaning duties when she was on the night shift through February 8, 2013. Significantly, the only other regular night shift custodian to testify, besides Respondent, said that she has always finished her assigned cleaning duties by the end of her shift, even when she has extra cleaning duties to make up for other custodians who are not working. During the 2012-2013 contract year, up until Respondent's suspension, Respondent repeatedly was told of the shortcomings in the quality of her work, from not cleaning the bathrooms properly, to not vacuuming and mopping the home science classroom floors, to not vacuuming and dusting her assigned classrooms, to not finishing her assigned cleaning duties by the end of her shift. Moreover, Respondent was well aware of the repeated confrontations she had with the head custodian, custodian, with the building supervisor, and with assistant principal Eastridge.6/ Respondent has no one but herself to blame for minimizing or trivializing these incidents, and ignoring the many warnings and chances she was given. Inexplicably, despite all the warnings Respondent had been given that her misbehavior was unacceptable and could result in termination, Respondent decided that she did not have to take the warnings seriously, because she did not think her misbehavior was unacceptable as she had been told repeatedly: I felt like disrespecting wasn't -- if you disrespect somebody, you got to be really cursing somebody out, or this here and that, or if for me to get to get to this far I have to done stole something or demolished the school or something. In terms of process, the evidence established that Petitioner followed the procedural requirements of section 7.10 of the SPALC agreement, by conducting an investigation in early 2013 upon request of the Lexington principal, by providing the investigative file to Respondent and her union representative in advance of the predetermination conference, and by conducting a predetermination conference on March 14, 2013, at which Respondent and her representative had the opportunity to respond to the investigation material. The result of that process was the Petition, and Respondent has had every opportunity in this proceeding to put Petitioner to its burden of proof and to present evidence in defense of the charges against her. As is evident to some extent from the hearing transcript, Respondent's testimony and demeanor at hearing only served to corroborate the testimony of Lexington personnel describing Respondent's chronic misbehavior. Despite numerous instructions by the undersigned and by Respondent's own lawyer, Respondent comported herself as follows: she would not listen to questions; she gave answers that did not match the questions or that went far beyond the questions; she criticized questions directed to her instead of answering; she repeatedly offered comments when there was no pending question; she repeatedly interrupted; she was angry and belligerent at times, and impatient at other times, at one point announcing to her own lawyer in the middle of his questioning: "I want to go home."7/ Respondent's lack of self-control on display at hearing added credence to the testimony of numerous witnesses describing Respondent's chronic misbehavior that was at the heart of the charges against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Barbara Rice. DONE AND ENTERED this 20th day of December, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of December, 2013.
