The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2010.
The Issue The issue is whether Petitioner properly denied Respondent's request to amend or expunge FPSS Report Number 97-025819.
Findings Of Fact Liberty Intermediate Care Facility ("LICF" or "Liberty ICF") is a residential facility which provides care, shelter, and sustenance to developmentally disabled adults. From time to time, certain residents at Liberty ICF require "one-on-one" supervision. In that circumstance, one staff member is assigned to look after only one resident. The staff member must maintain eye contact with the resident and must keep the resident within arm's reach at all times. During March 1997, Respondent provided direct care to developmentally disabled adult residents at Liberty ICF in her capacity as a Direct Care Instructor. On March 6, 1997, Respondent was assigned one-on-one supervision of M.H., a developmentally disabled adult resident of the LICF. M.H. was known to leave the facility and to commit acts of physical self-abuse, such as head banging, if he was not carefully monitored. M.H. suffers from mental limitations which substantially restrict his ability to perform the normal activities of daily living. At the time of this assignment, Respondent was aware of M.H.'s propensities. At around 3:00 p.m. on the afternoon of March 6, 1997, as Respondent was performing this supervision, M.H. was asleep on his bed, while Respondent was sitting on the chair next to the bed. When M.H. awoke, Respondent gave him some gummy bears. M.H. then accepted the gummy bears, went to the window, and stared outside. Respondent then sat down in the chair beside the bed and went to sleep. While Respondent was sleeping M.H. left the room and exited the building. Another staff member observed M.H.'s departure. Behavioral Program Specialist Cathy Buchanon entered M.H.'s room, woke Respondent, and asked her where M.H. was. Respondent stated that she did not know where he was. Respondent and Ms. Buchanan left the building and found M.H. in the parking lot.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order retaining as confirmed the report of adult neglect naming Respondent as perpetrator. DONE AND ENTERED this 21st day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 T. R. (address of record) Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Respondent has been licensed by the Department to operate an adult congregate living facility (hereinafter "ACLF"), which is located at 2610 Southwest 14th Avenue, Fort Lauderdale, Florida, and is known as Ficus Manor. The Department performs an announced annual survey on every ACLF. A survey is simply an inspection of the facility in order to determine the degree of compliance with Departmental rules and regulations. HRS-AA Form 1806, Classification of Deficiencies for ACLF Licensure Requirements, is completed by the Department's surveyors and forwarded to the facility, designating the deficiency and reference, class of deficiency, and date by which each deficiency must be corrected. A follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. On October 19, 1988, then-Department employee Elizabeth Balle performed the annual survey of Ficus Manor. During that survey, she cited twenty-seven deficiencies. Compliance dates were established for each deficiency. A follow-up survey was conducted by Baller on January 26, 1989, at which time she noted on Form 1806 that only seven of the previously-cited deficiencies had not been corrected. Those deficiencies noted by Baller as not having been corrected by January 26, 1989, are as follows: ACLF 41 Facility does not provide documentation of daily awareness of the general health, safety and physical and emotional well being of residents. Ref: 10A-5.128(1)(b) ACLF 51 The facility does not provide staff and services appropriate to the needs of the residents as evidenced by a lack of towels and toilet paper. (refer to ACLF 49, 41, 23, 17) Ref: 10A-5.182(4) ACLF 52 Owners or administrators are to protect residents rights and freedoms in accordance with the following: evidenced by 49, 41, 23, 17, 106 Ref: Ch. 400.428, F.S. and Ch. 10A-5.182(5), F.A.C. ACLF 89 The facility does not provide uncrowded safe and sanitary housing to its residents, in the following was observed: as evidenced by dirty sheets. Ref: Ch. 10A-5.23(1), F.A.C. ACLF 109 The interior and exterior of buildings are not kept reasonable [sic] attractive, in that: rusted and or dirty legs on chair and tables. Ref: Ch. 10A-5.22(1)(d), F.A.C. ACLF 112 The building is not maintained in a clean, safe and orderly condition in that the following was observed: as evidenced by 108, 109, & 110. Ref: Ch. 10A-5.22(1)(g), F.A.C. ACLF 115 There was slight odor of urine in room #1400. Ref: 10A-5.22(1)(j) On March 7, 1989, a second follow-up visit was performed by Baller and by Gary Warnok, a registered dietician employed by the Department. On October 19, 1988, on January 26, 1989, and on March 7, 1989, there was no documentation of daily awareness of the general health, safety, and physical and emotional well being of the residents by designated staff. On October 19, 1988, towels and toilet paper were not available to all residents. Many of the residents' bathrooms had no toilet paper and no towels. The few bathrooms that did have toilet paper and towels only contained one towel even though that bathroom was utilized by four to six residents. By the time of the January 26, 1989, or of the March 7, 1989, follow-up visit, the facility had placed a handwritten, paper sign in each bathroom advising the residents that if they needed towels or toilet paper they should "ask the person in charge." However, the supply of towels and toilet paper in each bathroom had not been increased. On January 26, 1989, and on March 7, 1989, the supply of towels and toilet paper remained inadequate. At the time of the annual survey and at the time of the two follow-up visits, the sheets on the beds in some of the resident bedrooms were dirty or were clean but had stains which appeared to have resulted from dried feces or urine. On October 19, 1988, and on January 26, 1989, there were rusted and/or dirty legs on the chairs and tables in the dining room at the Ficus Manor facility. At the time of the annual survey and at the time of the two follow-up visits, there was a slight odor of urine in room 1400.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of three Class III violations and imposing a civil penalty in the amount of $250 each, for a total of $750, to be paid within 30 days from the date of the Final Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1990. LINDA M. RIGOT 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 29th day of May, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact found in Petitioner's 1st, 6th, 7th, and 10th unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. The proposed findings of fact found in Petitioner's 2nd - 4th and 8th unnumbered paragraphs have been rejected as being irrelevant to the issues under consideration in this cause. The proposed findings of fact found in Petitioner's 5th, 9th, 11th, 13th, 14th, and 16th unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The proposed findings of fact found in Petitioner's 12th and 15th unnumbered paragraphs have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. Copies furnished: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128 Donna Szczebak O'Neill, Esquire 2800 West Oakland Park Boulevard Suite 205 Fort Lauderdale, Florida 33311 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, Robert F. Cameron, was subjected to an unlawful employment practice by Respondent, Osceola County, based on his disability, race, or national origin in violation of the Florida Civil Rights Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Petitioner brings this action alleging that the County discriminated against him based on his disability, race (white), and national origin (Canadian). Specifically, Petitioner asserts that the County failed to provide him a reasonable accommodation to allow him to participate in the application and selection process for a County job. The County is a political subdivision of the State of Florida and under the governance of the Osceola County Board of County Commissioners. At the final hearing, Petitioner testified that he is a disabled individual with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear.4 In addition, Petitioner relayed that his disability(ies) affect his normal life in that he has frequent medical appointments and requires an increased number of restroom breaks. On October 15, 2019, Petitioner, who is from Canada, applied for the position of Budget Analyst II (the "Analyst Position") with the County. The Analyst Position falls within the County's Office of Management and Budget Department ("OMB"). The OMB is responsible for preparing the County's 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner filed a revised version of his post-hearing submittal on October 9, 2020, which the undersigned considered as Petitioner's Proposed Recommended Order in writing this Recommended Order. 4 At the final hearing, Petitioner initially strenuously objected to identifying his specific disability, asserting that his right to privacy protects him from having to disclose personal medical information, except as requested by a medical professional. annual budget, as well as analyzing and evaluating budget transfers for the County Commissioners. The County initiated the recruitment process for the Analyst Position by posting the opening on the website www.governmentjobs.com on October 14, 2019. Petitioner found the posting on the website and submitted his application through the same. At total of 15 individuals applied for the position, including Petitioner. The application window for the Analyst Position closed on October 21, 2019. Thereafter, the County's Human Resources Department screened the 15 applications to ensure the interested persons met the minimum qualifications for the job. Eleven applicants, including Petitioner, possessed the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration. The OMB reviewed the 11 applications and selected three individuals to interview. These applicants included Petitioner (a white male), Lizette Rivera (a Hispanic female), and Sean Lower (a white male). Thereafter, the Human Resources Department set up a panel of five County employees to interview the candidates. Petitioner learned that he was being considered for the job on Thursday, October 24, 2019. That morning, the County called Petitioner at his home in Canada to inquire whether he was available for an interview the next day, Friday, October 25, 2019. Damaris Morales, an administrative assistant in the OMB, made the call. This case centers around what was said during that morning phone call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired. The Phone Call According to Petitioner Petitioner testified that Ms. Morales called him at a most inopportune time. His home phone rang at 8:44 a.m. At that moment, Petitioner was rushing out of his apartment to reach a 9:00 a.m. doctor's appointment. In fact, Petitioner had already started his car with an automatic starter, and it was running in his driveway. After he heard his phone ring, however, he turned back to answer the call. Petitioner answered the phone and greeted the caller. The caller identified herself as "Tamaris" from Osceola County.5 Ms. Morales then informed Petitioner that she was calling to set up an interview for the Analyst Position. Petitioner initially expressed to Ms. Morales that her call was "great" news. He then explained that he was running out the door to a medical appointment. Therefore, he asked if she would email him details about the interview, and he would respond to her as soon as he returned home. Ms. Morales informed Petitioner that the interviews would take place the next day (Friday). Petitioner was alarmed at the short notice. He explained to Ms. Morales that he was currently at home in New York state and could not travel to Florida for an in person interview the next day. Ms. Morales replied that she could arrange a telephone interview. Petitioner then asked Ms. Morales when the interview on Friday was scheduled. Ms. Morales relayed that she would email him the specific information when she obtained the time from her manager. Petitioner stated that he would "clear my schedule tomorrow for that interview." Petitioner then signed off saying, "Thank you. I do have to run. Sorry." Ms. Morales hung up the phone first. The conversation lasted 1 minute and 30 seconds. As Petitioner left for his doctor's appointment, he was under the impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview. The Phone Call According to Ms. Morales At the final hearing, Ms. Morales described a vastly different conversation with Petitioner. As further discussed below, Ms. Morales's 5 At the final hearing, Petitioner testified that he heard Damaris Morales state her name as "Tamaris." initial impressions of Petitioner from that phone call ultimately led the OMB to decide not to interview Petitioner for the Analyst Position. When Petitioner answered the phone, Ms. Morales testified that Petitioner's "aggressive" tone quite startled her. In a "loud" voice, Petitioner declared, "Yeah. What do you want? I don't have time to talk right now. I've got to be somewhere." Ms. Morales was not expecting such an abrupt and jarring reception. After a few seconds of stunned silence, Ms. Morales explained to Petitioner that she was calling about his application for the Analyst Position. Continuing in his harsh tone, Petitioner replied, "I have somewhere I need to be right now. Send me all the information via email. I am in Niagara Falls, New York." Petitioner then hung up the phone first without providing Ms. Morales his availability for a Friday interview. The whole conversation took less than 30 seconds. At the final hearing, in response to Ms. Morales's testimony, Petitioner suggested that she may have overheard an exchange between him and his son, Stewart, with whom he lives. Petitioner explained that, as he was leaving his apartment, his son called out from his bedroom asking whether the bathroom was free. Petitioner yelled back, "What do you want, Stewart? I am leaving." Petitioner explained that his phone may have malfunctioned and engaged Ms. Morales' call without him actually picking up the receiver. Petitioner strongly denied that he directed the comment "what do you want?" at Ms. Morales. Petitioner also theorized that if he spoke in a loud tone with Ms. Morales, it may have been due to his disability. As indicated above, Petitioner testified that he is deaf in one ear. Petitioner explained that Ms. Morales was talking very fast during their phone call. In responding to her questions, Petitioner was not trying to be abrupt or argumentative. However, he was in a rush to reach his appointment and was frustrated at the delay. Continuing with Petitioner's story, after the phone call, as Thursday morning progressed into Thursday afternoon, Petitioner did not receive an email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called the County to speak with her. He was forwarded to her office phone, where he left a voicemail. In his message, Petitioner expressed that he was available for an interview any time the next day (Friday). He also left his Skype contact information. Time continued to pass on Thursday. With no response over the next two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he was able to reach her. Petitioner inquired about his interview time for Friday. Ms. Morales momentarily demurred, telling Petitioner that she had to check with her manager. After several minutes, Ms. Morales came back on the line. She then told Petitioner that the Friday interviews were "full up." When Petitioner asked about an interview on another day, Petitioner claims that Ms. Morales promptly "slammed the phone down in my ear." Ms. Morales, on the other hand, testified that after she informed Petitioner that no interview times were available on Friday, Petitioner got angry and threatened her with a "legal matter." Petitioner then hung up on her. Petitioner was not content to let the matter drop. Therefore, on Friday morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to complain about the County's Human Resources Department and the OMB. In his email, Petitioner summarized the events from the previous day. Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday afternoon, Ms. Morales informed him that the interviews were "full up," and he would not be offered an opportunity to interview for the Analyst Position. Petitioner sent Mr. Fisher follow-up emails at 10:01 a.m. and 10:03 a.m. In the first follow-up email, Petitioner stated: I am disabled and covered under the ADA Act. I make this request for accommodation under the ADA Act. At 10:10 a.m., Petitioner sent an email to another County employee, Maria Colon, the Director of the Human Resources Department and the County's Americans with Disability Act ("ADA") coordinator. In this email, Petitioner stated: You are the designated ADA Act Coordinator, but you are discriminating against me and denying my ADA rights to accommodation under the ACT and Title VII. I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimination. Attached to this email, Petitioner included a copy of his Ontario Disability Support Program Certificate of Disability ("ODSP Certificate"). At the final hearing, Petitioner explained that the ODSP Certificate, which was determined in 2013, is proof of his disability. Petitioner's certificate states: Your file with the Disability Adjudication Unit has been adjudicated and you have been found to be a person with a disability as defined in the Ontario Disability Support Program Act. 1997. At the final hearing, Petitioner expounded on the reasons for his request, explaining that he sought an accommodation to enable him to conduct a telephonic interview because his disability prevented him from driving from Canada to Florida to interview in person. Furthermore, as a disabled person, he needed more time to prepare and participate in the recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019. Not hearing a response from Ms. Colon by Friday afternoon, at 3:03 p.m., Petitioner dispatched another email to her. He again attached his ODSP Certificate. In this email, Petitioner wrote that "your staff member Tamaris" refused to schedule an interview and then "hung up the phone on me." Petitioner also repeated that he was "requesting reasonable accommodation for the Budget Analyst II position." Ms. Colon called Petitioner shortly after his second email. During this call, Petitioner informed Ms. Colon that he was disabled, and he needed a telephone interview for the County job opening. Petitioner added that he was located out of state, and he could not travel to Florida in time for an in-person interview. Petitioner further declared that the County was discriminating against him because of his disability and his national origin. Ms. Colon advised Petitioner that she would look into his concerns and get back to him. Petitioner claims that Ms. Colon ended this conversation by slamming the phone in his ear. During this call, despite Ms. Colon's request, Petitioner refused to identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose their actual medical conditions. He said that, to safeguard their privacy, the disabled do not have to reveal their disability, except to the limited extent necessary to relate the disability to the requested accommodation. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating, "Per our phone conversation, I will look into your concerns and get back with you on Monday." By late Monday morning, October 28, 2019, however, Petitioner had not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m., Petitioner wrote, "When is my interview? I am not available tomorrow." With no response to this first email, at 3:48 p.m., Petitioner wrote, "As per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please respond." Petitioner then signed off, "I am available for an interview 10am to 11 am tomorrow and then on Wednesday, Thursday or Friday." Petitioner received a response from Ms. Colon at 6:10 p.m., Monday evening. In her email, Ms. Colon wrote: I had the opportunity to look into your concerns. To be honest, customer service is very important in the Budget Analyst II role, and we're assessing those skills in every contact with candidates. The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other candidates. Petitioner was most displeased at Ms. Colon's email, and at 6:54 p.m., he responded: I did nothing except indicate I was available for an interview. Regardless none of this over-rides the ADA and my rights to employment and accommodation. I will be discussing your actions, the "OMB" in denying my constitutional and ADA rights, my Title VII rights with [a County attorney] tomorrow. If they fail to resolve this, then I will be suing you personally, Tamaris, the OMB and the County on a substantial indemnity basis for well in excess of $500g. Petitioner ended the email with "See you soon in court." Six minutes later, at 7:01 p.m., Petitioner sent another email to Ms. Colon. In this message, Petitioner stated: I must commend you for trying to deflect the egregious violation of my rights through trying to claim my rights to an interview are somehow superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – "we are full up" … . I asked her to leave my interview time through an email. If that qualifies as "poor customer service" then you have a very BIG legal problem using that as a diversion for blantant [sic] discrimination based on race, color, nationality, and disability. Petitioner ended this email with, "I will be happy to take you to Federal Court not the Courthouse right across the street. See you soon in court." Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email, Petitioner accused Ms. Colon of "a blatant discrimination of interest in applying the ACT. Your superiors told you to deny me my rights under the ADA and you did so." Petitioner then declared that he was going to "sue you personally. … Trust me on that." After Monday, October 28, 2019, Petitioner never heard back from Ms. Morales or Ms. Colon regarding his application for the Analyst Position. Consequently, Petitioner claims that the County, by refusing to respond to his request for a telephone interview, denied him his rights under the FCRA and the ADA. At the final hearing, Petitioner vehemently denied that he was rude to Ms. Morales or during his call with Ms. Colon. Petitioner professed that he was perfectly polite to Ms. Morales. In addition, he asserted that Ms. Morales's testimony that he hung up the phone on her is totally false. Petitioner also contended that he did not threaten Ms. Colon with legal action as a means of intimidation. He was just exercising his rights as a disabled person. Petitioner further charged that the County's excuse for removing him from consideration was based on a misconstrued comment overheard during a brief phone call. Petitioner insists that his single utterance, "What do you want (Stewart)," cannot and should not justify the County's discriminatory action. The County ultimately hired Lizette Rivera for the Analyst Position. Petitioner alleges that the decision to hire Ms. Rivera is evidence of the County's female employees working together to eliminate white, male candidates. Petitioner maintains that Ms. Morales, a Hispanic female, favored another Hispanic (nondisabled) female (Ms. Rivera) for the Analyst Position. Consequently, Petitioner claims that Ms. Morales rigged the process and discriminated against Petitioner. At the final hearing, the County did not dispute that, while the OMB initially considered Petitioner for the Analyst Position, it quickly decided not to interview him for the job. The County also confirmed that the OMB did interview, and ultimately hire, Ms. Rivera to fill the Analyst Position. Regarding the County's decision not to interview Petitioner, after the initial phone call, Ms. Morales testified that she was quite startled by Petitioner's rude and unprofessional conduct. She immediately reported the conversation to her supervisor, Sharon Chauharjasingh, who is the Director of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she was by Petitioner's behavior. Ms. Morales further relayed that because Petitioner was "in a rush," he did not provide her his availability for a telephone interview. Consequently, she had no information which would allow her to schedule him for an interview on Friday. Ms. Morales's testimony describing the telephone interaction with Petitioner was credible and is credited. Petitioner admitted to parts of Ms. Morales's versions, including that fact that he was in a rush and that he yelled, "what do you want?" Other than the two phone calls with Petitioner on Thursday, October 24, 2019, Ms. Morales was not involved in the OMB's decision not to interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel for either Ms. Rivera or Mr. Lower. Ms. Morales further testified that at no time during her phone calls with Petitioner did he inform her that he had a disability, or that he needed an accommodation to participate in the interview process. Ms. Chauharjasingh also testified at the final hearing. Ms. Chauharjasingh initially explained that the OMB is tasked with preparing the County's annual budget of approximately $1 billion. The person who fills the Analyst Position will work in the OMB. The duties of the Analyst Position include reviewing the budgets of the different County departments, as well as assisting those departments with budget questions and preparation related tasks. The Analyst Position will also review budgetary impacts and projections, and be prepared to personally discuss these issues with County representatives. In addition, the Analyst Position will interact daily with other staff members and occasionally contact outside companies and the public. Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed that, because she oversees the OMB, she was responsible for selecting the person to fill the Analyst Position. For this opening, Ms. Chauharjasingh was the individual who narrowed down the applicants to the shortlist of three individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these candidates, Ms. Chauharjasingh looked at each applicant's past experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was qualified for the Analyst Position. After selecting the three candidates, Ms. Chauharjasingh asked her assistant, Ms. Morales, to call each applicant and set up an interview. Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either Friday, October 25, 2019, or Monday, October 28, 2019. At the final hearing, Ms. Chauharjasingh represented that the County routinely interviews job applicants by telephone. Ms. Chauharjasingh further testified that the decision not to continue the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came into her office looking "shaken up." Ms. Morales reported that she had just spoken to Petitioner, and he yelled at her and was rude and unprofessional. Ms. Chauharjasingh had never heard of a job candidate reacting the way Ms. Morales described. Ms. Morales has never complained to her about any other applicant. Based on Ms. Morales's interaction with Petitioner, Ms. Chauharjasingh immediately decided to remove Petitioner from consideration for the Analyst Position. She therefore directed Ms. Morales to "move on" from Petitioner and not to communicate with him any further. Instead, Ms. Morales was to only schedule interviews with the other two candidates (Ms. Rivera and Mr. Lower). The County's panel of five interviewers, which included Ms. Chauharjasingh, conducted an in-person interview of Ms. Rivera on Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in person, on Monday morning, October 28, 2019, at 9:30 a.m. Following the interviews, the panel ranked the candidates, and then sent the list to Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment to Ms. Rivera, who was the top-ranked candidate. Ms. Chauharjasingh concluded her testimony by asserting that Petitioner's disability played no role in her decision not to interview him. Ms. Chauharjasingh explained that, at the time she decided to terminate the interview process with him, neither she nor Ms. Morales had any knowledge or information regarding Petitioner's disability. Instead, the sole basis for removing Petitioner from the shortlist was Ms. Morales' interaction with him during her initial phone call. Ms. Chauharjasingh testified that, based on the specific responsibilities of the Analyst Position, personal traits such as good communication skills, decorum, and telephone etiquette are very important. For example, the Detailed Job Posting for the Analyst Position includes a Physical Demand Requirement of "Expressing or exchanging ideas by spoken word or perceiving sound by ear." Consequently, upon hearing Ms. Morales's description of Petitioner's attitude and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner's application any further. In her testimony, Ms. Colon expressed that she had no part in the OMB's decision not to interview Petitioner. She became involved in this matter only after she received Petitioner's email, addressed to her as the County's ADA coordinator, on Friday morning, October 25, 2019. Ms. Colon stated that after she read Petitioner's email, she did not immediately respond because she first wanted to determine what exactly had transpired between Petitioner and Ms. Morales the previous day. Ms. Colon spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these conversations, Ms. Colon heard that Petitioner was "rude" during Ms. Morales's first telephone call. Further, Petitioner was so "abrupt" that Ms. Morales was not able to offer him an interview time. Ms. Morales also informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls. Regarding her own phone call with Petitioner on Friday afternoon, Ms. Colon described an experience very similar to Ms. Morales's. Ms. Colon testified that the conversation was "not pleasant." As with Ms. Morales, Ms. Colon recounted that Petitioner was "agitated," loud," and "extremely unprofessional." During the exchange, Petitioner also threatened to sue her and the County. Regarding her email to Petitioner on Monday evening, October 28, 2019, in which she wrote that, "The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th," Ms. Colon stated that the decision not to schedule Petitioner for an interview was made on October 24, 2019. Specifically, after talking with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that Ms. Chauharjasingh had decided not to interview Petitioner immediately after Ms. Morales reported to her regarding Petitioner's rude and unprofessional interaction with her during their first phone call. As a final witness, Ms. Fatima Lozano testified regarding her participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources "generalist" with the County. Ms. Lozano has taken part in a number of interviews of applicants for County employment. She relayed that the County routinely conducts telephonic interviews. Ms. Lozano repeated that, when hiring employees, the department responsible for the position sets up the interviews and selects the winner. For the Analyst Position, the OMB selected the applicants who would interview for the job. Regarding scheduling the interviews for the Analyst Position, Ms. Lozano testified that, on October 21, 2019, she received a calendar invite requesting her availability. The interviews then took place on Friday, October 25, 2019, at 11:30 a.m. and Monday, October 28, 2019, at 9:30 a.m. While the above findings chronical the key aspects of Petitioner's discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County's failure to schedule his interview through the www.governmentjobs.com website. At the final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com, the County only uses the website to solicit applications. Petitioner was "shocked" to learn that the County did not take advantage of the website's functions to schedule interviews with candidates. Petitioner was also "stunned" at the County's attempt to schedule his interview with less than one day's notice. Petitioner found the practice unprofessional and unacceptable. Petitioner represented that the standard process used by governmentjobs.com is to email a notification to the job applicant at least four to seven days prior to the agreed interview time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap), race, or national origin. Instead, the credible evidence establishes that the decision not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or national origin. The decision to not interview Petitioner was based solely on his own behavior, considered rude and unprofessional, effectively disqualifying him from the job. Accordingly, Petitioner failed to meet his burden of proving that the County committed an unlawful employment practice against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Robert F. Cameron, did not prove that Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert Finley Cameron 1 Churchill Street, Apartment 10 St. Catharines, Ontario, Canada L25 2-P3 C (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office 1 Courthouse Square, Suite 4700 Kissimmee, Florida 34741 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent engaged in an unlawful employment practice, specifically whether Respondent failed to accommodate Petitioner's alleged disability.
Findings Of Fact Petitioner was hired by Dollar General in December 2006 as the second shift Human Resources (HR) Representative I for Dollar General's Alachua Distribution Center. As the second shift HR Representative I, part of Petitioner's responsibilities was to interact with the employees who worked on the second shift. Petitioner's immediate supervisor throughout her employment was Donna Myers, Senior Human Resource Manager. Ms. Myers interviewed and hired Petitioner. Petitioner's job as a HR Representative required her to conduct interviews, drug tests, participate in committees, interact with employees, transfer employees, and other employee- related duties. Petitioner was qualified for the position as HR Representative, having a master's degree in human resources management. Some concern existed among management as to whether Petitioner could be as effective in her job if she were to use a golf cart. The concern was whether she would be less approachable by employees when driving around rather than walking up to the areas where they worked. Since there was an "open door" policy for employees to approach Petitioner, she could always meet them in her office if they had enough time during a break. Company policy dictates that at least 10 percent of the HR Representative's time should be spent "walking the floor." Petitioner understood the walking requirement to be at least an hour per shift. Dollar General maintains and enforces an Anti- Discrimination and Harassment Policy, which prohibits, among other things, discrimination based on an employee's disability. Dollar General's Anti-Discrimination and Harassment Policy also contains a provision which provides, in pertinent part, that it intends to comply with the Americans with Disabilities Act by providing reasonable accommodations to qualified individuals with disabilities. Dollar General's Anti-Discrimination and Harassment Policy includes a procedure that allows and urges any employee who believes that that he or she is the subject of or has been the subject of discrimination to report the alleged discrimination by contacting a toll-free number. Ms. McIntosh was an employee of Dollar General, was aware of Dollar General's policy prohibiting discrimination and harassment in the workplace based on disability, and acknowledged receipt of Dollar General's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy applies to all employees. As an employee, Dollar General's Anti-Discrimination and Harassment Policy applied to Ms. McIntosh. All of Dollar General's management team, who testified at hearing, were aware of the company's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy instructs employees to speak with their supervisor or to call the Employee Response Center to request an accommodation or report any type of discrimination. Ms. McIntosh took medical leave in October 2007. In the October 25, 2007, certification for her medical leave, Ms. McIntosh's treating physician estimated that the probable duration of her condition was one to two weeks. Further, in the November 15, 2007, recertification, Ms. McIntosh's physician estimated that the probable duration of her condition was two to three months. Effective November 24, 2007, Ms. McIntosh's physician released her to return to work without any restrictions. The release does not indicate that Ms. McIntosh was unable to climb stairs or walk for extended periods of time. Ms. McIntosh was physically able to do her job when she returned from medical leave. Ms. McIntosh identified the disabilities for which she requested accommodations as arthritis in hips and knees, a dislocated disk, and a pinched nerve. Ms. McIntosh claims that her disabilities limited her ability to walk, stand, and climb stairs. Petitioner recalls making her first request for an accommodation to her direct supervisor, Donna Myers, to use the golf cart to tour the million-square-foot facility, and to be excused from climbing in September 2007 after being diagnosed with arthritis in her hips and knees. Petitioner reports being told that the golf carts were no longer allowed for use by HR personnel. Ms. Myers denied this exchange taking place, and testified that the golf cart was available for Petitioner's use at any time. Robert Barnes, the distribution center manager, confirmed Petitioner's understanding that the designated HR golf cart was no longer used in HR. Petitioner also reported her October 2007 injury to Ms. Myers. Petitioner was even seen at the emergency room by Mr. Barnes. The medical leave paperwork was submitted to Ms. Myers by Petitioner. Dollar General had knowledge of Petitioner's injuries and medical condition. Upon her return to work in December 2007, Petitioner again asked Ms. Myers about using the golf cart and decreasing the amount of time she was required to spend on the floor of the distribution center. This request was denied. Again, Ms. Myers denied that this exchange took place between Petitioner and her. Petitioner began to use a cane or walking stick to help her get around the distribution center. Ms. Myers acknowledged seeing Petitioner walking with aid of the stick. Petitioner is firm in her testimony that she informed her supervisor and others up the chain of command of her condition and her need for an accommodation. Nevertheless, Ms. Myers denies that Ms. McIntosh asked to use a golf cart, to be relieved of her responsibility to walk the facility to interact with employees, or to be excused from walking up and down the stairs to meet with employees. A series of correspondence and emails supports Petitioner's claim that Dollar General's management was aware on some level of the seriousness of her physical limitations. Medical records that were submitted to Ms. Myers in October 2007 by Petitioner describe her knee pain and inability to walk up stairs. Those records estimate two weeks before Petitioner's return to work. The October medical report led to a November 9, 2007, letter from Ms. Myers to Petitioner requesting an updated medical certification. Petitioner complied and provided a medical certification showing the knee injury to be more serious than first thought and accompanied by a herniated disc. This report evidenced a return to work time of two to three months after physical therapy and additional diagnostic procedures. Finally, Dollar General received a Fitness for Duty form from Petitioner's health care provider stating a return to work date of November 24, 2007. Petitioner convinced her physician to clear her for work under the belief she had to be qualified at 100 percent in order to return. Prior to raising the issue of her medical condition, Petitioner had a stormy relationship, at times, with her supervisor, Ms. Myers. An exchange of emails occurred in March and April of 2007 between Petitioner and Mr. Harbison detailing Petitioner's issues with Ms. Myers. Petitioner did not ask Mr. Harbison, who was in her direct chain of command, to modify the responsibilities of her job in any way, nor did she mention -– until her suspension in March 2008 -– that she allegedly requested and was denied a reasonable accommodation. Petitioner did not call Dollar General's Employee Response Center to request an accommodation for her medical condition. Petitioner believed that hotline to be only for hourly employees, although Dollar General's written policies did not dictate any such restriction. When Petitioner returned to work in December 2007 after receiving treatment for her knee and back injuries, she experienced difficulties in standing for extended periods, in walking, and in climbing stairs. The pain she experienced was intense when engaging in any of these activities. She was able, despite the pain, to perform tasks of daily living, such as bathing and dressing herself, which allowed her to go to work. In addition to not being permitted to use the golf cart to perform her job, Petitioner had a broken chair in her office which made it more difficult for her to get relief when she was not walking the distribution center floor. She was first able to get a chair from the office next door to hers, and then Mr. Arrendell allowed her to bring in a chair from the conference room. Petitioner recalls many instances of interaction with her supervisors and managers about her physical limitations, including discussions about her inability to walk in a Christmas parade and her inability to stand up without leaning against a wall during a staff presentation she made. Dollar General's witnesses were not able to recall the substance of these interactions, except for remembering that Petitioner had an issue of some sort regarding the parade. Petitioner was suspended in early March 2008, pending an investigation, and her employment was ultimately terminated on March 11, 2008, for conduct unbecoming of an HR professional. No evidence was produced at hearing as to the circumstances leading to her dismissal. Petitioner did not have surgery related to her back or knee conditions until after she left the employ of Dollar General. She received pain management until she had surgery on her back. She received a consultation for her knee injury, but never had surgery performed. Upon leaving her employment, she had no insurance to cover her medical bills. The medical bills amounted to approximately $200,000, with the hospital bill for her surgery being $106,000 by itself. Petitioner has suffered financial losses which led her to borrow money for food, for her electric bill, losing her truck, losing her home insurance, and becoming three months behind on her mortgage. Petitioner has suffered emotionally as well. She suffers anxiety attacks and has had suicidal thoughts. Petitioner tried to return to work after leaving Dollar General. She secured a manager's job with Cato, a women's fashion store. The job did not require any heavy lifting or climbing of stairs. Her salary there was approximately half of her $43,000 salary at Dollar General. She worked at Cato for less than six months, earning gross pay of $11,600. She left when she suffered pain that required a trip to the emergency room which resulted in her having her back surgery. She did not return to work at Cato. Petitioner's only other earnings after leaving Dollar General were unemployment compensation benefits of $498 every two weeks, plus a $25 bonus from the federal stimulus package. Petitioner could have performed the essential functions of her employment if a reasonable accommodation had been made for her physical limitations. Dollar General has made accommodations for employees with physical limitations in the past, generally in the context of a workers' compensation injury.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that an unlawful employment practice occurred; that Respondent should have provided a reasonable accommodation for Petitioner's disability; awarding attorney's fees to Petitioner in accordance with a Title VII action and costs; and such other relief as the Commission shall deem appropriate. DONE AND ENTERED this 4th day of March, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2010. COPIES FURNISHED: Melanie A. Mucario, Esquire Mucario, McHugh & Dowdel, PLLC Post Office Box 781847 Orlando, Florida 32878-1847 Alva Cross Hughes, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his race in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made concerning the alleged discrimination. Petitioner did not appear and did not submit any evidence to support findings of fact. Findings are required concerning the adequacy of notice of the administrative hearing. On March 9, 2005, Petitioner, through his qualified representative, filed Petitioner's Request for Final Hearing and Petitioner's Request for the Reopening of Discovery. Petitioner received adequate notice of the administrative hearing. The Commission referred this matter to DOAH by cover letter dated July 19, 2004. DOAH assigned the matter to ALJ Fred L. Buckine and transferred it to the undersigned on October 26, 2004. The record shows that the two ALJs issued 10 notices or orders in this proceeding between August 12 and December 1, 2004.1 DOAH properly addressed, stamped, and delivered each notice and order by U.S. mail to the address of record for Petitioner, 1527 South Central Avenue, Apopka, Florida 32703. On and after August 30, 2004, DOAH also delivered a copy of each notice and order by U.S. mail to the qualified representative. The address of record for the qualified representative is the same as that for Petitioner. No notice or order was returned to DOAH as undelivered. During the four months preceding the administrative hearing, Petitioner declined to participate in discovery due to the poor health of his qualified representative. Respondent requested two continuances in an effort to complete discovery. Petitioner declined to complete discovery, and Respondent moved to dismiss for failure to complete discovery. Respondent alleged the qualified representative was "physically unqualified" to represent Petitioner. The undersigned denied Respondent's motion to dismiss and granted a motion for continuance filed by Petitioner on November 30, 2004. The motion for continuance was part of a document entitled, "Petitioner's Request for Continuance of Final Hearing and Injunctive Relief Against Retaliatory Termination" (Petitioner's Motion for Continuance). Petitioner's Motion for Continuance discusses numerous grounds for the continuance and only parenthetically states that his qualified representative was in poor health. The Order Granting Continuance and Re-scheduling hearing included the following notice to Petitioner: The undersigned deems Petitioner's motion for continuance to be based on the illness of Petitioner's Qualified Representative. Petitioner has had ample time to obtain a replacement for his Qualified Representative or to proceed pro se. The undersigned will grant no further continuances based on the illness of the Petitioner's Qualified Representative. Order Granting Continuance and Re-scheduling Hearing, dated November 30, 2004. Petitioner's Motion for Continuance expressly admits that Petitioner received delivery of relevant documents in this proceeding. In relevant part, Petitioner states: On or about November 25 and 26, 2004, the Friday and Saturday following Thanksgiving, Petitioner, who receives the mail in this case at his address for both him and his Qualified Representative (who has been repeatedly hospitalized during this case for the sudden occurrence of life- threatening congestive heart failure), received in those days' mail the following pleadings. . . . (emphasis added) Petitioner's Motion for Continuance at 6. Petitioner had actual notice of the administrative hearing. During the week preceding the hearing, staff at DOAH contacted Petitioner, in the normal course of prehearing procedure, and provided information concerning the date and time of the hearing. Petitioner had ample time between the last order continuing the administrative hearing and the date of the hearing to file any motion for relief to which he was entitled for good cause or extreme emergency. Petitioner did not file a motion for relief. Petitioner did not represent that no other person was competent or capable of representing Petitioner except for his qualified representative. At the administrative hearing, the undersigned telephoned Petitioner at a telephone number of record. Petitioner answered, and the undersigned asked Petitioner if he intended to attend the hearing. Petitioner refused to answer and directed the undersigned to Petitioner's qualified representative. DOAH provided Petitioner and his qualified representative with adequate notice of the administrative hearing, and the undersigned conducted the hearing. Petitioner chose to neither request a continuance of the hearing or attend the hearing. Petitioner now seeks to begin the process anew by filing post-hearing motions for an administrative hearing. The record does not support the remedy requested by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of March, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2005.
The Issue On April 27, 1995, Petitioner filed a charge of discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment. The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.
Findings Of Fact The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC). Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to $18,000.00. The new hire and promotion were both approved by the Center president, Donald J. "Jerry" Feulner. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination. As Center president, Jerry Feulner accepted the recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995. There is no credible evidence that Dana Monroe's termination was based on racial discrimination. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Dana L. Monroe 5116 Hernandes Drive Orlando, Florida 32810 Kimberly A. Wells, Esquire Jackson, Lewis, Schnitzler, & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
