The Issue 1. Whether the Emergency Rules on Sales and Use Tax on Services and Other Transactions adopted by the Respondent effective July 1, 1987, were adopted pursuant to Section 33, Chapter 87-6, l987 Laws of Florida, and Section 120.54(9), Florida Statutes (1987)? 2. Whether Rules 12AER87-31(1)(c), (5), (7)(i)(7)(k), (10), (12) and (13), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The Respondent is an agency of the State of Florida. It is charged with the responsibility to implement, enforce and collect the taxes levied by the State of Florida, including Chapter 212, Florida Statutes (1987). During the 1987 Legislative Session the Legislature enacted Committee Substitute for Senate Bill 777, which is codified as Chapter 87-6, 1987 Laws of Florida (hereinafter referred to as "Chapter 87-6"). This act, which amended Chapter 212, Florida Statutes, was signed into law by the Governor on April 23, 1987. Section 5 of Chapter 87-6, created Section 212.0594, Florida Statutes. This new Section of Chapter 212 imposed a sales tax on construction services performed on or after July 1, 1987. Section 33 of Chapter 87-6, authorized the Respondent to adopt emergency rules pursuant to Section 120.54(9), Florida Statutes, to implement the new law. In authorizing the adoption of emergency rules, the Legislature determined that the failure to promptly implement the provisions of Chapter 87-6 would present an immediate threat to the welfare of the State because revenues needed for the operation of the State would not be collected. On June 6, 1987, the Legislature enacted Committee Substitute for House Bill 1506, which is codified as Chapter 87-101, 1987 Laws of Florida (hereinafter referred to as "Chapter 87-101"). Chapter 87-101 is commonly known as the Sales Tax Glitch Bill. Chapter 87-101 was passed by the Legislature on June 6, 1987, signed into law by the Governor on June 30, 1987, and was effective beginning July 1, 1987. Section 5 of Chapter 87-101 repealed Section 5 of Chapter 87-6. Section 6 of Chapter 87-101, created a new Section 212.0594, Florida Statutes, taxing construction services, in replace of the Section 212.0594, Florida - Statutes, previously created by Section 5 of Chapter 87-6. Thus the Legislature substantially changed the manner in which sales tax was to be imposed upon construction services. Section 20 of Chapter 87-101 amended Section 33 of Chapter 87-6 but continued the authorization to adopt emergency rules and the justification for doing so. On May 8, 1987, the Respondent published notice in the Florida Administrative Weekly of its intent to hold public meetings and workshops on May 19 and 26, 1987, and June 6, 1987. Proposed rules relating to Chapter 87-6 were to be considered at these meetings and workshops. On May 22, 1987, the Respondent published notice in the Florida Administrative Weekly of its intent to hold public meetings and workshops on May 26, 1987, and June 26, 1987. Proposed rules relating to Chapter 87-6 were to be considered at these meetings and workshops. On May 29, 1987, the Respondent published notice in the Florida Administrative Weekly of its intent to hold a public meeting and workshop on June 6, 1987, to consider proposed rules relating to Chapter 87-6. On June 5, 1987, the Respondent published notice in the Florida Administrative Weekly of its intent to hold a public meeting and workshop on June 12, 1987, to consider proposed rules relating to Chapter 87-6. Ultimately, the Respondent held four workshops concerning the emergency rules: May 19 and 26, 1987, and June 6 and 12, 1987. The workshop conducted on June 12, 1987, was conducted to consider Rules 12AER87-31, Florida Administrative Code. The rules considered at the June 12, 1987, workshop had been redrafted to implement Chapter 87-101. The rules considered at the workshop were available for a short period of time before the workshop and during the workshop. Comments were received by the Department at the June 12, 1987, workshop from the public, including representatives of the construction industry. As a result of these comments, changes in the Emergency Rules were made following the workshop. The Emergency Rules took into account the method of taxing construction services provided for in Chapter 87-101 rather than the method previously provided for in Chapter 87-6. The Respondent's emergency rules, including Rule 12AER87-31, Florida Administrative Code, were certified by the Executive Director of the Respondent and delivered to the Secretary of State for publication on June 18, 1987. The Respondent delivered the full text of the emergency rules, a statement of the specific reasons for finding an immediate danger, a statement of the reasons for concluding that the procedure followed to adopt the rules was fair under the circumstances and a summary of the purpose of the rules for publication in the first available issue of the Florida Administrative Weekly. The emergency rules had to be filed with the Secretary of State no later than June 18, 1987, in order to be published in the Florida Administrative Weekly by July 1, 1987, the effective date of Chapters 87-6 and 87-101 and the emergency rules. The full text of the emergency rules was published in the Florida Administrative Weekly on June 26, 1987. The text of this notice, which was accepted into evidence as Petitioner's exhibit 4, is hereby incorporated into this Final Order. The Emergency Rules had an effective date of July 1, 1987. Initially the Emergency Rules were to expire January 1, 1988, six months after their effective date, as specified in Chapter 87-101. Pursuant to Section 1, Chapter 87-539, 1987 Laws of Florida, the Emergency Rules are effective through June 30, 1988. Representatives of the Respondent and the Petitioner met between the passage of Chapter 87-101 by the Legislature and June 18, 1987, and discussed the act. The Respondent expended a great deal of time and effort in adopting the emergency rules implementing Chapters 87-6 and 87-101, and in providing information to the public. The method of taxation to be implemented was unique and, therefore, the Respondent was unable to look to other jurisdictions for guidance concerning implementation of the tax. The taxation of construction services was one of a multitude of services taxed. Chapter 87-101, required substantial redrafting of the emergency rules, including Rule 12AER87-31, Florida Administrative Code, within a relatively short period of time. The new tax necessitated the registration of 100,000 to 150,000 new sales tax "dealers" by July 1, 1987. Prior to July 1, 1987, the Respondent received thousands of telephone calls and thousands of written requests seeking information concerning the sales tax on services. The Respondent was extensively involved with the Legislature during the period of time when Chapters 87-6 and 87-101 were adopted. Representatives of the Respondent discussed the acts with Legislative members and staff. Dr. James Francis acted as a liaison between the Respondent and the Legislature. Dr. Francis also served on the Revenue Estimating Conference. In his capacity with the Revenue Estimating Conference, Dr. Francis prepared estimates of tax revenues from the services tax. A revenue impact analysis of the services tax was also provided by the Respondent to the Legislature based upon each amendment and proposed amendment to Chapters 87-6 and 87-101. Representatives of the petitioner expressed dissatisfaction with the method of taxation of construction services contained in Chapter 87-6 because of the required itemization of building material costs on each contract. The Respondent prepared a revenue neutral (no loss of tax revenue previously estimated to be generated by Chapter 87-6) method of imposing the services tax on construction services without requiring itemization of building material costs. Pursuant to this method, a set percentage, generally equal to the average percentage of building material costs, is backed out of "contract price" or "cost price." The remainder is treated as the amount of the "contract price" or "cost price" attributable to the construction services. The revenue estimated by the Respondent and provided to the Legislature, based upon the elimination of an average percentage of building material costs, was based upon the inclusion in "contract price" and "cost price" of all expenditures associated with the construction industry, including the total expenditures for building materials supplied by owners to contractors. The Legislature was aware of this fact before it adopted Chapter 87-101. Fiscal notes for Chapter 87-101, which the Respondent had available prior to the adoption of the Emergency Rules, numerically quantified the estimated revenue to be generated by Chapter 87-101. The Respondent also knew what amounts were included in the estimate of revenue contained in the fiscal notes. These amounts were consistent with the revenue estimates provided by the Respondent to the Legislature. The Emergency Rules represent a contemporaneous administrative construction of Chapters 87-6 and 87-101 by an agency charged with responsibility to administer the acts and which was intimately involved in the adoption of the acts. The Petitioner has challenged the validity of Rules 12AER87-31(1)(c), (5), (7)(i), (7)(k), (10), (12) and (13) Florida Administrative Code. The Petitioner withdrew its challenge of other portions of the Emergency Rules. Rule 12AER87-31(7)(i), Florida Administrative Code, defines the terms "contract price" which determines the amount of tax due on construction work performed pursuant to a contract and any speculative construction which is sold within six months of completion. The Petitioner has challenged Rule 12AER87-31(7)(i), Florida Administrative Code, to the extent that contract price is defined to include the fair market value of materials used by a contractor if the value of those materials is not otherwise included in the contract price. The Petitioner's contractor witnesses' understanding of Rule 12AER87- 31(7)(i), Florida Administrative Code, that the fair market value of materials supplied by the owner are to be included in the computation of contract price, is consistent with the Respondent's interpretation of the Rule. Prime contractors often estimate the cost of building materials in their daily business activities. The Respondent's interpretation of Rule 12AER87-31(1)(c), Florida Administrative Code, does not require a contractor or subcontractor who uses building materials which are purchased tax free to remit a tax. The rule simply makes it clear that there is not necessarily any link between the question of whether the purchase of building materials and the provision of construction services are tax exempt.
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, H and R Block Enterprises, on account of her race, color, or sex; as a result of Respondent’s maintenance of a sexually-hostile work environment; or as retaliation to her opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter, an employee of Respondent, is an African-American female. H&R Block is a tax preparation company that provides tax preparation services to individuals and businesses. H&R Block has retail offices throughout the United States, including the Steeplechase tax office in Gainesville, Florida. Respondent employs more than 15 full-time employees at any given time. H&R Block is an equal opportunity employer. Its equal employment opportunity policy applies -- without regard to an employee’s race, color, or sex, or any legally-protected status -- to all aspects of employment, including but not limited to hiring, placement, promotion, termination, layoff, transfer, scheduling, leaves of absence, compensation, and training. H&R Block also has a written anti-discrimination and anti-harassment policy that strictly prohibits unlawful discrimination and harassment in the workplace, and prohibits retaliation. H&R Block’s policies are published to all employees. H&R Block employees who believe they are subject to impermissible employment discrimination or harassment are encouraged to bring their issues to the attention of their supervisor (if practical) or the human resources department, to call H&R Block’s toll-free hotline, or to send an email to ethics@hrblock.com. In late fall of each year, H&R Block hires seasonal employees to work in its retail offices to provide tax preparation services during the tax season, which generally runs from the end of December through April 15th of each year. Each tax office employs seasonal tax preparers, known as Client Service Professionals (CSP), and is managed by a Client Service Leader (CSL or Office Manager). The CSL reports to a District General Manager (District Manager) who oversees numerous tax offices. H&R Block employed Petitioner as a seasonal CSP for the 2009 through 2013 tax seasons. In mid-2013, Ms. Howell was hired by Respondent as a District General Manager to manage 20 tax offices throughout the North Central Florida District. Due to the seasonal nature of the job, it was not unusual for there to be a high rate of CSL turnover, particularly in the 14 seasonal offices that were not open year- round. The Steeplechase tax office is a seasonal office. Among Ms. Howell’s first acts as District Manager was hiring a new CSL for the Steeplechase office. Being new to the company, she had no specific knowledge of, or experience with, existing H&R Block employees. Tammie Craft was Respondent’s District Operations Coordinator, responsible for managing Respondent’s physical facilities and electronics, supplying paperwork and forms for use by the District Manager and CSLs, ordering supplies, managing and distributing office keys and petty cash, keeping lists of contacts, and similar responsibilities. Ms. Craft was not charged with personnel matters. Ms. Howell, having little personal knowledge of H&R Block employees, followed “best practice” and solicited input as to suitable candidates from Ms. Craft. Ms. Craft knew of Petitioner, who had worked as a CSP and who was enrolled in Respondent’s Income Tax Course, and identified Petitioner “as having potential.” Ms. Craft recommended Petitioner to Ms. Howell for the Steeplechase CSL. In October 2013, Ms. Howell interviewed Petitioner in person and subsequently hired Petitioner for the 2014 tax season as the seasonal CSL position in the Steeplechase tax office. As a CSL, Petitioner was an hourly, non-exempt employee. The hiring of Petitioner to a supervisory CSL position was a promotion from her previous position as a CSP. In her new position, Petitioner reported to Ms. Howell. The Steeplechase office is a small office on the outskirts of Gainesville. It had, immediately prior to the 2012 tax season, suffered the loss of its long-time CSL who, on his death, had about 400 clients in his portfolio. Some of those clients left for other tax preparers. As a result, the Steeplechase office had experienced declines in clients and revenues. Petitioner was hired primarily to market H&R Block services in the community in order to increase clients and revenues. In addition to marketing, Petitioner was responsible for adhering to and enforcing company policies and procedures (including its anti-discrimination and anti-harassment policies), scheduling, monitoring office progress reports and employee reports, and attending manager meetings, among other managerial duties. In addition to her managerial duties, Petitioner prepared tax returns for clients. Petitioner was responsible for managing four seasonal CSPs who staffed the Steeplechase office: Hillery Bassriel; Donna Bassriel; Suzetta Heflin; and Nicholas Tucker. Hillery and Donna Bassriel were husband and wife, and had been employees at Steeplechase since before 2008. Ms. Heflin joined H&R Block at Steeplechase in 2008. Mr. Tucker, who was a close friend of Ms. Heflin, joined in 2012. In addition, Petitioner managed two office receptionists. The Steeplechase office CSPs, who had worked independently and autonomously over the years, did not respond well to Petitioner’s management style. It was not uncommon for the CSPs to be called to the office by their clients to work on tax returns. Ms. Heflin testified that the CSPs understood that their clients had jobs and schedules that might not be conducive to meetings during regular hours, and that customer service often demanded dropping everything to hurry to the office for a meeting. Many of the instances of off-schedule hours and non-compliance with dress code described herein were the result of hastily called off-hour and odd-hour requests from clients. Mr. Bassriel, who had worked at the office for the longest period -- since before 2008 -- was aggressively territorial with his clients. CSPs are paid, in part, on commission. Thus, it is in their financial interests to get and keep as many clients as possible. Although the CSPs tried to evenly split up clients, Mr. Bassriel frequently intercepted new clients as they came in the door, changed appointments when he believed he was entitled to handle a client, and was generally protective of his clients. Mr. Bassriel was somewhat lax about working a set schedule and conforming to the company dress code. He would occasionally fail to put in his time commitments and, though he did not like to work on Saturdays, would occasionally show up for work on that day. He preferred working by himself, and would frequently work “off-the-clock” to catch up on work or make appointments. He would occasionally appear at work dressed in soccer shorts, tennis shoes and collarless shirts or sweatshirts, though he had a medical clearance for such dress. However, Mr. Bassriel was an effective and productive CSP, and those incidents of less-than-rigid compliance with company attendance and dress codes had been overlooked before Petitioner’s employment. Mr. Tucker was described, even by his close friend, Ms. Heflin, as having a bad temper. If left to himself, he was a productive worker. However, he chafed at management, which led to the incidents described herein, and to his eventual termination. When Mr. Tucker first began work at H&R Block in 2012, he and Mr. Bassriel were frequently at odds, with the cause of their disputes being the distribution of clients, including those from Steeplechase’s recently deceased CSL. During those disputes, Mr. Tucker was known to direct profanity at Mr. Bassriel. After a period of time, Mr. Tucker and Mr. Bassriel worked out their conflict, and they had no further disputes. As with Mr. Bassriel, Mr. Tucker would come to work late, would work without clocking-in, and would appear at off- scheduled hours to meet with clients. On any given day, Mr. Tucker might wear jeans and a collared shirt, or the sanctioned attire of a shirt and tie. Depending on the circumstances, he was known to come in to meet clients wearing shorts and a tee-shirt. He would frequently eat at his desk, rather than in the office break room. However, Respondent’s clients were happy with Mr. Tucker and so, as with Mr. Bassriel, his non-compliance with attendance, dress code, and office policies had been overlooked before Petitioner’s employment. During the 2014 tax season, Petitioner frequently reported her complaints about Mr. Bassriel’s and Mr. Tucker’s attendance and attire to Ms. Howell and H&R Block’s human resources department. On multiple occasions, Petitioner and Mr. Tucker were at odds with each other and did not get along, but at other times, they joked around with each other. Petitioner even joked about Mr. Tucker in some texts messages that she sent to Ms. Howell. During and after the tax season, Ms. Howell received complaints from the Steeplechase CSPs about Petitioner’s management style and behavior. As a result of the ongoing complaints from both Petitioner and the CSPs, Ms. Howell repeatedly counseled Petitioner on how to effectively manage her employees, and suggested different management approaches. Moreover, Ms. Howell conducted manager meetings in Ocala for the 20 CSLs under her supervision, which Petitioner regularly attended. During these meetings, Howell taught leadership skills and discussed different management techniques. Ms. Heflin testified that conflicts between Petitioner and Mr. Tucker were commonplace. When Mr. Tucker came to work late, failed to clock-in, or violated dress code, Petitioner would generally greet him with hostility. In those instances when Mr. Tucker reacted negatively, which was not uncommon, Petitioner would frequently laugh at him, an act that “set him off,” thus escalating the situation. Ms. Heflin testified, credibly, that neither Petitioner nor Mr. Tucker acted in a professional manner. Ms. Heflin testified that the conflicts would often result in Mr. Tucker directing profanity towards Petitioner, including calling her a bitch, and saying things like he “wished she’d get hit by a car,” or he “hoped she’d die.” However, Mr. Tucker’s language was not motivated by animus based on race or gender. Rather, he just did not like Petitioner or her style of management. More to the point, except for the three incidents described below, Petitioner did not report any of the arguments or profanity to Ms. Howell, to Respondent’s human resources department, or to any other person or office having responsibility for human resource issues. In January 2014, Petitioner contacted Ms. Howell and the human resources department to report that Mr. Tucker reported to work 27 minutes late and wearing jeans on January 6, and reported to work 17 minutes late on January 7. On January 9, 2014, an Alachua County Code Enforcement officer visited the tax office to discuss H&R Block outdoor marketing signage that allegedly violated a county ordinance. The officer was an older Caucasian man. Mr. Tucker confronted the county employee and used “obscene language” towards him. Petitioner emailed Ms. Howell to report Mr. Tucker’s behavior towards the Code Enforcement officer. Petitioner reported that she counseled Mr. Tucker about his unprofessional behavior, as well as his attendance and attire. According to Petitioner, Mr. Tucker “started accusing me of being annoying, because I bur[p] when I eat in the back when I’m on my lunch break.” Petitioner countered by telling Mr. Tucker that he needed to take breaks in the breakroom, instead of at his desk, and he needed to pick up his garbage. According to Petitioner, Mr. Tucker used “profanity” and called her an “idiot,” and said that she was set up to be a failure. Petitioner did not specify in the email the type of “profanity” used by Mr. Tucker. None of the insults described reflect any racial or gender animus. Petitioner concluded her January 9, 2014, email to Ms. Howell by noting that Mr. Tucker “had absolutely no respect for anyone that walked in today.” Thus, the evidence is persuasive that Mr. Tucker’s foul mood and attitude was visited equally on anyone who crossed his path, regardless of their race or gender. Mr. Tucker received a verbal warning for the January 9, 2015, incident. On January 22, 2014, Mr. Bassriel and Mr. Tucker both appeared at the office in varying stages of non-compliance with office policy. Mr. Bassriel came to the office to prepare a tax return with a client. He was wearing soccer shorts, a “hoodie,” and tennis shoes. There was no indication that the client objected to his attire. Petitioner took a picture of Mr. Bassriel and the client and sent it to Ms. Howell. There was no evidence of any reaction by Mr. Bassriel. Mr. Tucker arrived just before 7:00 p.m. on the evening of January 22, at the request of a client who asked that they meet to prepare the client’s tax return. As indicated previously, such requests were not uncommon. Petitioner sent a text message to Ms. Howell complaining that Mr. Tucker came in “literally 20 mins ago . . . not in appointment manager.” Subsequent text messages indicate that Petitioner was upset that Mr. Tucker did not let her know of the unscheduled appointment ahead of time, stating that H&R Block is “‘open by appointment’ we are . . . :-p I said sure if you let me know ahead of time.”1/ Petitioner then advised Ms. Howell that Mr. Tucker “just called me a pain in his ass . . . I am literally laughing.” She then indicated that she was going home, and would “do an exception” the next day. On January 23, 2014, Petitioner contacted Respondent’s human resources department to report Mr. Tucker’s actions of the previous evening. She reported that Tucker had “cursed” at her when she questioned him about scheduling a client, and specifically stated that Tucker told her, “you better not fuck with my time” and “you need to go back to being a CSP.” There was no explanation as to why Petitioner’s description of the language used by Mr. Tucker changed from that provided in her initial report to Ms. Howell. Nonetheless, though Mr. Tucker’s alleged response, as reported the day after the incident, was stronger than the initially reported statement that Petitioner was “a pain in his ass,” neither statement provides evidence of any conduct or statement directed towards Petitioner’s race or sex. On January 23, 2014, Ms. Howell visited the Steeplechase tax office to individually meet with Petitioner and Mr. Tucker to discuss the January 22 incident, to coach Mr. Tucker on his attendance and dress code compliance, and to explore with Petitioner ways to improve office morale. Ms. Howell testified credibly that Petitioner provided no additional examples of the profanity allegedly uttered by Mr. Tucker, and that there was no report of any comment based on sex or race. Ms. Howell gave both Petitioner and Mr. Tucker the option to transfer to another H&R Block office but, since a transfer could affect clients and compensation, neither “wanted to take the hit.” Mr. Tucker received a written corrective action notice. Petitioner testified -- relying on her own after-the- fact alterations to her emails to Ms. Howell to support her testimony -- that Mr. Tucker used considerably more vile and inflammatory statements on January 22 than those reported in writing to Ms. Howell and the human resources department, or discussed on January 23 with Ms. Howell. Specifically, Petitioner’s altered emails provide that Mr. Tucker “[c]alled me bitch, slut, whore,” and that “Tucker told De Matas to shut the fuck up when she told him hello, Tucker called De Matas a ‘fucking cunt’, ‘learn how to do a tax return you stupid slut.’” Those more inflammatory statements were allegedly made in the presence of Ms. Heflin, who had no recollection of the statements, despite the words being ones that would reasonably stick in one’s memory. Furthermore, Petitioner testified at the hearing that she did not tell anyone affiliated with Respondent that Mr. Tucker called her a “bitch” or a “slut,” and never told anyone in H&R Block human relations that she was subject to sexual harassment or race discrimination. She did not tell Ms. Howell. Petitioner’s altered emails and testimony were unsupported by any contemporaneous writings. Whether the more inflammatory statements were made or not, since they were not reported to H&R Block, they lack effect. Between January 23 and March 27, 2014, Petitioner and Mr. Tucker appeared to have “patched things up.” The only incident regarding Mr. Tucker reported to Ms. Howell occurred on February 21, 2014, when Petitioner sent a text message to Ms. Howell in which she complained that “[Mr. Tucker] is eating at his desk watching a movie online but he did clock out. soooo??” Ms. Howell provided guidance on how Petitioner might gently resolve the matter. Petitioner again provided after-the-fact editorial commentary to her February 21, 2014, text message to Ms. Howell, asserting that “Nicholas Tucker once again cussed me out using vulgar and threatening language.” If that occurred, why Petitioner would not have reported it to Ms. Howell at the time is a mystery. Nonetheless, it was not reported. During the period from January 23 to March 27, 2014, Petitioner’s attention was primarily directed to Mr. Bassriel. Petitioner complained that Mr. Bassriel, when busy, asked clients to leave and return at a later time; was “fucking up returns”; or was “milking the clock.” On two occasions, Mr. Bassriel closed the office during business hours. Ms. Heflin testified that those incidents occurred when Mr. Bassriel’s scheduled quitting time came without Petitioner arriving at her scheduled time. Many of Petitioner’s complaints regarding Mr. Bassriel were made in casual texts and emails between Petitioner and her subordinate, Ms. Heflin. None of the complaints had anything to do with Petitioner’s race or sex. On March 3, 2014, after having complied with a client’s request to meet at the office on a Saturday, and after receiving an e-mail from Petitioner admonishing him for his failure to provide 48-hour notice before a schedule change, the more reserved Mr. Bassriel had finally had enough. On that date, he emailed Petitioner to state that “I did not want to work on Saturday’s [sic] only to help my clients who request a Saturday appointment and when my schedule allows it I would be able to help out the office!” Mr. Bassriel also commented that he had received complaints from six of his returning clients regarding Petitioner’s “rude and threatening behavior.”2/ Mr. Bassriel closed his email by asking Petitioner to “stop micro-managing us and let us take care of our clients, to do what we do best and that is to provide the best Tax Professional service we have provided our clients for many years!” The email, though providing substantial evidence of Mr. Bassriel’s frustration, provides no evidence of any conduct or statement directed towards Petitioner’s race or sex. Other than the March 3, 2014, incident in which Mr. Bassriel’s frustration boiled over, there was no evidence that Mr. Bassriel ever reacted negatively towards Petitioner, by word or deed, when she admonished him for violating office policy. In response to Petitioner’s frequent complaints regarding Mr. Tucker and Mr. Bassriel, both Ms. Howell and Ms. Craft communicated with the two of them, in person and by email, to remind them of H&R Block policies regarding dress and attendance. On March 6, 2014, Petitioner received her mid-season CSL performance review. The review contained positive statements, though areas for improvement were noted, directed at “building a collaborative and client-focused team environment.” In general, Ms. Howell determined that Petitioner “inconsistently meets expectations.” However, Petitioner was seen as having positive attributes, and was encouraged to apply to work for Respondent during the off-season. Petitioner submitted an application to do so. Since Mr. Tucker’s unscheduled, but client-requested, office visit of January 22, 2014, Petitioner and Mr. Tucker had gotten past their differences such that there were no overt instances of animosity. However, in late February or early March, Mr. Tucker became aware that Petitioner continued to report his dress code and attendance violations. According to Ms. Heflin, Mr. Tucker viewed that as a breach of their friendship, which made him angry and unable to trust Petitioner. That sense of distrust appears to have set the stage for the events of late-March 2014. On March 27, 2014, Petitioner contacted Ms. Howell late in the day to report that Mr. Tucker had “cursed her out.” According to Petitioner, the incident was precipitated when she “remind[ed] him to put in his exception for today b/c he didn’t clock in.” Petitioner reported that Mr. Tucker “called me a whore, slut, asked me whose dick did I suck to get this job,” and that he was “wishing me dead.” Ms. Heflin witnessed part of the incident, which she described as heated, but could not recall the specific words used by Mr. Tucker. Ms. Howell told Petitioner that she should not report to work until instructed to do so by Ms. Howell, and that Ms. Howell would go to the tax office the next morning to discuss the incident with Mr. Tucker. On the morning of March 28, 2014, Ms. Howell reported the incident of the previous day to H&R Block’s human resources department. That same morning, Ms. Howell arrived at the tax office to confront Mr. Tucker about his behavior. Ms. Howell informed Mr. Tucker that he was on administrative leave, pending further investigation, and that he was not to report to work until further instruction from Ms. Howell. Ms. Howell relieved Mr. Tucker of his office key and allowed him to pack up his personal belongings before leaving. On Saturday, March 29, 2014, Ms. Heflin was working alone at the Steeplechase office. Mr. Tucker came to the office to talk to her about the incident. Being a close friend of Ms. Heflin, he apologized for letting her down. It was just those two in the office. While there, he used the computer to look something up on the internet. He did not call clients or engage in work-related activities. Before he could leave the office, Petitioner arrived. She told Mr. Tucker that he was not allowed in the office and should leave. Mr. Tucker got angry and -- as usual -- cursed at Petitioner. He stated that he was there to visit his friend and refused to leave. Petitioner reported the incident to Ms. Howell by text message. Ms. Howell did not have her telephone with her at the time but, after seeing the message about an hour later, she called the office. Mr. Tucker answered the telephone. Ms. Howell reiterated the terms of his suspension, and then went to the office. Upon her arrival, she observed Mr. Tucker sitting in his car in the parking lot. She approached him, whereupon Mr. Tucker stated that Petitioner was a whore, that he wished Petitioner would die, and closed with the vaguely threatening and unsettling statement that Ms. Howell would “regret this decision.” Mr. Tucker then left the premises. On the morning of March 31, 2014, Ms. Howell spoke with the human resources department about the events of the weekend, including Mr. Tucker’s violation of his suspension. The decision was made to terminate Mr. Tucker from employment with H&R Block. On that same day, Mr. Tucker was informed that his employment was terminated. The human resources department contacted the Alachua County Sheriff’s Office about Mr. Tucker’s termination, which sent a deputy to monitor the parking lot for the day. How Respondent could have acted more swiftly or decisively in its termination of Mr. Tucker is hard to imagine. After his termination, there were no further incidents involving Mr. Tucker.3/ On April 4, 2014, Ms. Howell met with Petitioner for her end-of-the-season discussion, a meeting that Ms. Howell conducted with all her managers. During that meeting, Ms. Howell and Petitioner discussed employment opportunities for the next tax season. Based on Petitioner’s representations that she did not want to return as a manager, Ms. Howell suggested that Petitioner consider other employment opportunities with H&R Block for the next tax season. The Steeplechase office met its revenue projections for 2014, and it was thought that Petitioner had qualities that could benefit the company. Though Petitioner had difficulties at Steeplechase, Ms. Howell believed that she could be trained for management duties in a different office environment with different employees. Petitioner submitted an application for off-season employment and Respondent approved her hiring. The evidence demonstrated that, although any seasonal employee could apply for off-season employment, only a relative few were accepted. However, Petitioner withdrew her application shortly after Mr. Tucker was terminated. On April 18, 2014, following the April 15 tax return filing deadline, and pursuant to terms of her employment agreement, Petitioner’s seasonal employment came to an end, as did that of all H&R Block’s other seasonal employees. As of April 18, 2014, H&R Block no longer employed Petitioner. At no time during her period of employment with H&R Block was Petitioner subject to discipline. She was hired at her agreed-upon rate of pay, and received no reduction in pay during the 2014 tax season. She was not required to change her work hours, nor was she required to relocate. When she reported the sexually charged statements of Mr. Tucker on March 27, 2014, he was suspended within hours, and terminated the first business day from the date of his suspension. Petitioner served out the contractual term of her employment without further incident. After the 2014 tax season, Ms. Howell received several unsolicited reports from former H&R Block managers who shared examples of Petitioner’s unprofessional behavior towards clients and tax professionals as a CSP in years past. Further, Ms. Heflin sent Ms. Howell an unsolicited email that placed responsibility on Petitioner for the issues in the Steeplechase tax office during the 2014 tax season. H&R Block took no action on those reports, nor could it, since Petitioner was no longer an employee. On May 22, 2014, Petitioner entered an H&R Block tax office to access her H&R Block email account, and emailed H&R Block’s human resources department to request the company’s disciplinary files for Tucker. The company denied Petitioner’s request, as she was an inactive employee during the off-season and, therefore, was not entitled to such information. On May 28, 2014, Petitioner entered another H&R Block tax office and requested to use the copy machine. Petitioner was denied access to the copy machine, because she was an inactive employee, and, therefore, was not entitled to use the company’s equipment for personal use. Petitioner did not reapply for employment for the 2015 tax season. Ms. Heflin, who is an African-American female, was hired by Respondent to replace Petitioner as the CSL for the Steeplechase tax office for the 2015 tax season. Ultimate Findings of Fact At no time prior to March 27, 2014, did Petitioner contact her supervisor or Respondent’s human resources department, file a complaint, discuss with co-workers or management, or otherwise claim that she had been the subject of discrimination because of her race or sex, or make any assertion that Mr. Tucker, Mr. Bassriel, or any other employee of H&R Block acted in a sexually inappropriate way towards her. When Petitioner reported the first incident of gender- specific profanity directed towards her by Mr. Tucker on March 27, 2014, Mr. Tucker was immediately terminated. There was no competent, substantial evidence adduced at the hearing to support a finding that Petitioner was subject to any adverse employment action, either as a result of the facts set forth herein, or for any other reason. Rather, Petitioner served out her contractual term of employment, and was subsequently offered off-season employment with Respondent. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner’s protected classes, i.e., African-American and female, were treated differently from Petitioner, or were not subject to similar personnel policies and practices. In fact, Petitioner was succeeded as the Steeplechase CSL by an African- American female, Ms. Heflin.
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 Respondent, H and R Block Enterprises, did not commit any unlawful employment practice as to Petitioner, Mary Ann De Matas, and dismissing the Petition for Relief filed in FCHR No. 2014-01148. DONE AND ENTERED this 12th day of October, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 October, 2015.
The Issue Whether Respondent should be dismissed from employment with the Sumter County School Board pursuant to Chapter 221, Florida Statutes, as set forth in petition and notice of charges dated July 16, 1979, and amendment to petition, dated November 6, 1979. In this proceeding, Petitioner alleges that Respondent has committed acts rendering him subject to termination of employment as a member of the instructional staff of the School Board of Sumter County, and cancellation of his continuing contract. The alleged acts are willful absence from duty without leave, misconduct in office, and willful neglect of duty in violation of Chapter 231, Florida Statutes. The charges stem from three alleged instances in January and February, 1979, of improper use of sick leave. The petition and charges were filed by the District School Superintendent and were referred by the Petitioner to the Division of Administrative Hearings on August 28, 1979. Respondent filed a Motion to Dismiss the charges with the School Board prior to referral to this Division, alleging that he had not been given an opportunity to appear before the Board when it had considered the charges, and that the charges had been untimely filed. The motion was denied by the Hearing Officer on the merits and because Section 231.36(6), Florida Statutes, which governs such disciplinary actions, does not require any specific procedures in processing cases prior to a final determination. On November 6, 1979, Petitioner amended its petition to add an additional allegation of misuse of sick leave on January 12, 1979. Respondent opposed the amendment on the ground the allegation had not been brought before the School Board for action, and therefore should not have been referred to hearing. The Hearing Officer granted Petitioner's motion to amend the petition for the same reasons stated in the preceding paragraph. However, the scheduled date of final hearing was continued from November 29, 1979 to January 9, 1980 to provide Respondent an opportunity to adequately prepare his defense.
Findings Of Fact Respondent, Arnold James Constable, holds Florida Teaching Certificate Number 330507, Graduate Rank III, and is a member of the instructional staff of Petitioner School Board of Sumter County. He is employed pursuant to continuing contract as a physical education teacher at the North Sumter Intermediate School, Wildwood, Florida, and has been so employed since the beginning of the 1978-1979 school year. (Testimony of Respondent, Petitioner's Exhibit 1, Case pleadings.) On December 30, 1978, Respondent was arrested in Altamonte Springs and charged with petit theft of merchandise from a department store. Respondent informed the police booking officer that his occupation was "fast order cook" and that he had a twelfth grade education. Respondent was employed as a short- order cook during the Christmas holidays in 1978. On the evening of January 11, 1979, Respondent telephoned a substitute teacher, told her that he had gastro-intestinal flu, and asked if she would substitute for him at the school on the next day. She agreed and did substitute for Respondent at the North Sumter Intermediate School on January 12. Respondent also called the school secretary on the evening of January 11, and told her that he had severe stomach pains and would not be able to be at school the following day, but that he had arranged for a substitute teacher. On January 15th, Respondent told his school principal, Mrs. Josephine Strong, that he had been ill on January 12th and also during the preceding weekend. (Testimony of Davis, Respondent, Winkles, Strong, Petitioner's Exhibit 3.) On January 12, 1979, Respondent was present at the Seminole County Court, Sanford, Florida, for arraignment on the pending charge against him. He pleaded not guilty to the charge. Thereafter, he was notified to be present at the County Court on February 5, 1979 with jury trial scheduled to be held during that week. (Testimony of Horneffer, Kugler, Sundvall, Petitioner's Exhibits 8- 9.) On Sunday, February 4, 1979, Respondent asked his mother, Mrs. Elva Constable, to call the secretary at the North Sumter Intermediate School and tell her that he would not be present at the school the following day, but he said not to tell her that he was sick. Mrs. Constable called the school secretary that evening and told her that Respondent was sick and would not be at school the next day, and would need a substitute teacher. Respondent was not at the school on the following day, February 5, and a substitute teacher was obtained. On February 5, Mrs. Constable again called the school secretary and told her that her son was still sick, would not be at school on the following day, and would again need a substitute. Respondent was not present at the school on February 6, and a substitute was again obtained as a result of his absence. Mrs. Constable was aware of the pending criminal charge against her son in Seminole County. She admitted at the hearing that her son was not ill on February 5th and 6th, and that he lied to the school secretary concerning the reason for his absences because she was apprehensive that if school officials learned of such charge, Respondent might be suspended or dismissed from his employment. (Testimony of E. Constable, Winkles, Respondent, Petitioner's Exhibit 4.) On February 5, 1979, Respondent appeared in the Seminole County Court and his trial was scheduled for the following day. On February 6, he represented himself at a jury trial and was acquitted of the pending charge. During the trial, Respondent appeared to be in good health. (Testimony of Horneffer, Kugler, McClug, Cadavid, Petitioner's Exhibit 8.) The standard procedure to record absences for sick leave is for the school secretary to maintain a Sick Leave Compensation Application for the employee each school month. Absences for sick leave are recorded on the form which is signed by the employee and the school principal after the first absence. Subsequent absences are noted on the form but it is not signed again by the applicant. At the end of the month, the number of days absent are totaled, and the sick leave form is submitted to the County School Board office, along with the payroll. In January, 1979, Respondent's sick leave form reflects that he was absent on January 2 and January 12. The date of his signature thereon is January 2. In February, 1979, the form shows that Respondent was absent on February 5 and 6. His signature and that of the principal on the form are dated February 5 although they did not sign the form until some day subsequent to February 6. (Testimony of Winkles, Strong, Petitioner's Exhibits 3-4,190.) The collective bargaining agreement between Petitioner and the Sumter County Educational Association provides that instructional personnel may use up to a maximum of four days per year for personal leave chargeable to accumulated sick leave provided the request submitted for such leave contains a statement setting forth reasons to substantiate the nature of the extenuating circumstances requiring the employee to be absent from his duties. The agreement provides that a request for such leave should be submitted to the county office through the principal at least 2 hours prior to the effective date of leave. The form for such personal leave with pay used in the Sumter County school system provides that application should be submitted to the county office one week prior to the effective date of leave. The teaching association has sought in past years to eliminate the requirement that a reason be stated in an application for personal leave. Discussions between both county officials and teacher representatives during bargaining sessions have included the subject of sick leave abuse by employees in utilizing such leave for personal purposes. However, there is no evidence that such abuse was a common practice by county school board personnel. In January and February, 1979, Respondent had four days of personal eave available for authorized use. (Testimony of Winkles, Strong, Foster, Harner, Edwards, Petitioner's Exhibits 7, 10-11.) In 1976, while Respondent was teaching at Webster Elementary School, Webster, Florida, he received letters of admonition concerning improper paddling of students from Principal R. C. Foote. As a result of another paddling incident in February, 1978, the principal again censured Respondent in a letter, dated February 24, 1978. Further paddling incidents in early May, 1978, wherein Respondent purportedly used excessive force, resulted in a recommendation by the principal to the County School Superintendent, Joe R. Strickland, on May 8, 1978, that Respondent be suspended from teaching. Superintendent Strickland notified Respondent in a letter dated May 9, 1978, that he had requested the State Professional Practices Council to investigate the matter and make a recommendation concerning dismissal based on gross insubordination and conduct unbecoming a public officer. Thereafter, Respondent and a group of other teachers at Webster Elementary School brought allegations of misconduct against Principal Foote to the attention of the Professional Practices Council which ultimately led to an administrative proceeding and consequent disciplinary action against him. On June 15, 1978, Respondent was advised by the Superintendent that the School Board had assigned him to the North Sumter Intermediate School for the 1978-1979 school year. By letter of August 11, 1978, the Superintendent reprimanded Respondent and directed him to adhere to school board policies regarding corporal punishment in the future. (Testimony of Strickland, Respondent, Petitioner's Exhibits 14, 16-21) The Foote incident was the subject of wide notoriety in the county and led to controversy within the black-white community. Respondent and the other teachers, who had made charges against the principal and later testified at his administrative hearing, were the subject of much newspaper and television coverage during the period May-December, 1978. Respondent was identified in the media as the leader of the group, based on statements attributed to various individuals including members of the School Board. The group of teachers, including Respondent, was apprehensive concerning possible repercussions against them with respect to their employment as a result of their participation in the matter. Respondent and one of the other teachers received anonymous threatening phone calls at night during this period. (Testimony of Respondent, Stephens, M. Everett, Newell, Rigsby.) Respondent testified at the hearing and admitted that he had requested sick leave for his absences on January 12 and February 5-6, 1979, and that he was not ill on those particular days. His reason for not taking personal leave was to avoid the necessity of disclosing the fact of his arrest for petit theft in Altamonte Springs on a personal leave application. He feared that if his arrest became known, he would have been suspended from his instructional duties without pay, and having been previously suspended in 1977 on charges which later proved to be unfounded, he wished to avoid such a status again. He explained that he planned to have his mother call the school on February 4 and simply say that he would not be in the next day. Then, after his criminal trial, he intended to apply for personal leave for his absences. However, since his mother informed the school authorities that he was ill, Respondent was unable to later request personal leave. He also gave as a reason for taking sick leave for the absences that "he might as well use it" since he had to make court appearances. (Testimony of Respondent.) Respondent was employed as physical education instructor at Webster Elementary School from school year 1973-1974 until the summer of 1978, when he was transferred to North Sumter Intermediate School. During the five year period at Webster, Respondent received satisfactory performance evaluations from Principal Foote, although several evaluations noted that Respondent did not accept constructive criticism in the proper perspective and that he needed to follow instructions in a more satisfactory manner. Respondent testified that he and Foote had opposite views as to the manner in which children should be treated, and that they argued frequently. Several teachers who were among the group who joined in allegations against Foote are of the opinion that Respondent was dedicated, had excellent rapport with children, and was concerned for their welfare. A parent of one of Respondent's students at Webster is of the opinion that he was well liked and respected by his students. (Testimony of Stephens, Everett, Newell, Williams, Lee, Respondent, Respondent's Exhibit 6.) Respondent received a satisfactory evaluation rating at North Sumter Intermediate School during the school year 1978-1979. His principal is of the opinion that the Respondent "involved" the children better than his predecessors and that he had good relations with his students. Several teachers at North Sumter and a parent of students there are of the same opinion concerning Respondent's good relationship with his pupils. (Testimony of Strong, David, Rigsby, Wrigth, Knuth.) Superintendent Strickland considers Respondent to have been an average teacher. Bernard R. Shelnutt, Jr., county school board instructional supervisor, has written performance evaluations concerning Respondent for the past four or five years and has consistently rated Respondent as a fine teacher who works well with children. (Testimony of Strickland, Shelnutt, Respondent's Exhibit 6.) Respondent has been the county coordinator of the Special Olympic Program for handicapped children for a number of years. He has voluntarily spent a great amount of his own time in fund raising and supervision of the program with commendable results. His efforts in this respect were the subject of favorable testimony at the hearing from teachers and parents in the community. (Testimony of Respondent, Small, F. Everett, Smart.)
Recommendation That Petitioner School Board of Sumter County suspend Respondent Arnold James Constable from his employment as a member of the instructional staff for a period of six (6) months without pay, and effect forfeiture of compensation for his unauthorized absences from duty on January 12 and February 5-6, 1979, pursuant to Section 231.36(6) and 231.44, Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of May, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1980. COPIES FURNISHED: C. John Conigilio, Esquire Post Office Box 26 Wildwood, Florida 32785 John F. Wendel, Esquire Post Office Box 5378 Lakeland, Florida 33803 Joseph Egan, Jr., Esquire Post Office Box 2969 Orlando, Florida 32802
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
Findings Of Fact In the fall of 1992, there were several Democratic candidates for the office of Tax Collector for Walton County. Among the Democratic candidates was Sue Carter who had been employed in the Walton County Tax Collector's Office prior to resigning to run for tax collector. The first Democratic primary was held in September, 1992, resulting in a runoff primary between Sue Carter and Sue Rushing in October, 1992. Ms. Carter defeated Ms. Rushing. In November, 1992, Sue Carter won the general election. Respondent, Teresa Gomillion (Gomillion), was employed in the Walton County Tax Collector's Office in 1992. Pat Pollard, Tammy Day, Patty Lynch, and Sylvia Rushing were also employed in the tax collector's office during the 1992 election campaign. Ms. Lynch and Gomillion supported Ms. Carter. Ms. Day did not support Ms. Carter. Ms. Rushing was related to Sue Rushing, Ms. Carter's opponent. Ms. Pollard did not support any candidate for the office of tax collector. Pat Pollard's work station was located about three feet away from Gomillion's work station. She overheard Gomillion ask a customer of the tax collector's office for whom he was going to vote. This was the only time that Ms. Pollard heard Gomillion talk to a customer concerning the race for tax collector. Gomillion and other employees in the tax collector's office did discuss the race for tax collector during office hours. Pam Dyess has been employed at a car dealership in DeFuniak Springs for 16 years. During 1992, her job responsibilities required her to go to the tax collector's office to handle the tag and title work for the dealership. After the first primary, Ms. Dyess went to the tax collector's office during working hours and while she was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for Harley Henderson. Ms. Gomillion joined the conversation and asked Ms. Dyess why she had voted for Harley Henderson and made some disparaging remarks about Mr. Henderson's qualifications. Rodney Ryals is now and was an employee of the City of DeFuniak Springs during the fall of 1992. During the election, Mr. Ryals spent a great deal of time at the tax collector's office taking care of city business and visiting with his friend Ms. Pollard. While Ryals was at the tax collector's office Gomillion told him, "You better vote for Sue Carter, she's the only qualified candidate." Ryals had told Gomillion and Ms. Lynch that they should not campaign on the job because it was illegal. Both women told him that if they did not politick that they might lose their jobs. Both Jack Little, the tax collector, and Ms. Carter had advised Gomillion not to politick in the tax collector's office. Having judged the credibility and demeanor of the witnesses, I find that Gomillion did not hand out campaign literature while she was on the job at the tax collector's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order finding that Teresa Gomillion violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $500 and a public censure and reprimand. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2067EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraph 11: Accepted to the extent that Ms. Gomillion had solicited Mr. Ryals' vote but rejected as far as Mr. Ryals observing Ms. Gomillion soliciting other customers. Paragraph 12: Having judged the credibility of the witnesses, I find that Mr. Ryals testimony that Ms. Gomillion handed out campaign literature not to be credible. Paragraph 13: Accepted in substance. Paragraph 14: Rejected as constituting recitation of testimony. Paragraphs 15-16: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraph 4: The first sentence is accepted in substance. The second sentence is rejected as constituting both recitation of testimony and argument. Paragraph 5: The first sentence is accepted in substance. The remainder of the paragraph is rejected to the extent that it implies that Ms. Gomillion properly performed her duties. The greater weight of the evidence shows that Ms. Gomillion's actions were prohibited by the tax collector and were not part of her duties. Paragraphs 6-8: Rejected as constituting recitation of testimony. Paragraph 9: The first sentence is accepted in substance except as it relates to Ms. Gomillion's solicitation of Mr. Ryals. The remainder of the paragraph is rejected as unnecessary. Paragraph 10: Rejected as unnecessary. Paragraphs 11-12: Rejected as recitation of testimony. Paragraph 13: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraph 14: Rejected as subordinate to the facts actually found. Paragraphs 15-16: Rejected as constituting recitation of testimony. Paragraph 17: Rejected as unnecessary. Paragraphs 18-19: Rejected as constituting recitation of testimony. Paragraph 20: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraphs 21-22: Rejected as constituting recitation of testimony. Paragraph 23: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraph 24: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraph 25: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is accepted in substance. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Michael E. Ingram Assistant Attorney General Department of Legal Affairs, PL-01 The Capitol Tallahassee, Florida 32399 E. Allan Ramey, Esquire 13 Circle Drive Post Office Box 369 Defuniak Springs, Florida 32433-0369 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Having heard oral argument on the issues and considered the pleadings and the record transmitted to the respondent by the BTA, the following pertinent facts are found: For seven years prior to the tax year 1973, petitioners property had received an educational exemption from ad valorem taxation. By letter dated June 1, 1973, petitioner was advised by the tax assessor that its property had been denied tax exemption for the reason that no application for exemption had been received. Upon receipt of this letter, which wascorrectly addressed, petitioner immediately contacted the Exemption Department of the assessors office, advised them that he had not received an application form in the mail, and was informed that the application had been mailed to the wrong address, apparently the address of one of the former owners of petitioner. The reason for the application being sent to the wrong address was because, for the first time, the assessor's office was using new application forms prepared by data processing and the old address had not been changed in posting. Upon receipt of the application form, petitioner completed it and returned it to the assessors office on June 11, 1973. Had the application form, petitioner completed it and returned it to the assessors office on June 11, 1973. Upon appeal to the Broward County BTA, the BTA unanimously granted the tax exemption upon the recommendation of the tax assessor. The BTA notified the respondent's Executive Director of the change. It was the respondent's staff recommendation to invalidate the change for the reason that the BTA did not have before it information legally sufficient to warrant such change. Petitioner requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned was assigned as the Hearing Officer.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Broward County Board of Tax Adjustment in granting petitioners property an educational exemption from ad valorem taxation be validated and affirmed. Respectfully submitted and entered this 23rd day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER 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 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact At all times material to this cause the Respondent was employed as a police officer/investigator with the DCSP. Petitioner is a School Board charged with the duty to operate, control, and supervise all free public schools within the Dade County school district. Respondent began employment with the DCSP in 1986. From the time of her hiring through January of 1992 Respondent performed all duties of her employment in a competent and satisfactory manner. In February, 1992, Respondent began to take sick leave and accumulated an excessive number of absences. In fact, in March, 1992 until May, 1992, Respondent was on leave and was an in-patient at a Michigan Clinic specializing in the treatment of head pain. After returning to work, Respondent was assigned to duty in region IV of the DCSP. Her duties included conducting initial and follow-up investigations of crimes committed on school grounds and to conduct personnel investigations. While employed in region IV, Respondent reported late to work and was absent so often that her absences adversely affected the operation of the office. On July 8, 1992 and July 10, 1992, all officers assigned to region IV were directed to comply with the following procedures: All Detective Sergeants are required to report to this office at your designated starting time, and prior to departure at the end of the day. If you are the courier for the month, your starting time is at the Central Office. If for some reason, such as prior appoint- ment, etc., you cannot report to the office, you must call prior to your starting time or departure time and advise where you can be reached. If you are unable to report to work, you are required to notify the office not less than one hour before your starting time, stating the reason and the expected date of return. School Resource Officers are required to report to your assigned school at your designated starting time. You are also required to notify this office daily, within one-half hour to advise of your arrival. If for some reason, you are unable to report to your designated area, you are required to notify your principal and this office not less than one hour before your starting time, stating the reason and the expected date of return. If for some reason, such as court appoint- ments, etc., you must leave your school, you are required to notify this office, and advise your principal of your departure and expected time of return. All overtime must have prior approval of this office before working. On September 24, 1992, the Respondent was reminded, in writing, of the foregoing procedures. From July 6, 1992 through November 20, 1992, Respondent's work performance, when she attended her duties, was excellent. However, such performance was over shadowed by her chronic absenteeism and tardiness. Further, Respondent did not follow the directives given on July 8 and 10, 1992 and September 24, 1992. On November 20, 1992, Vivian Howell notified Respondent, in writing that while her performance had been highly competent, Respondent would have to improve her work record. By that time, Respondent's absences had greatly impacted the efficiency of her unit since they were unable to depend on her being on the job. Additionally, Ms. Howell directed Respondent to provide a doctor's note to verify that Respondent was able to perform her duties, and that her medication (for migraine headaches) would not impair her functioning. By December 9, 1992, Respondent's attendance record had not improved. Ms. Howell sought the assistance of Ben McCardel, the director of the south division special investigative unit, to intervene in addressing the issue. Ms. Howell advised Respondent on December 9, 1992, that her continued absences and tardies had placed her co-workers at a serious disadvantage and imposed a hardship. On December 14, 1992, Respondent told Ms. Howell that she had been advised to take a leave of absence. Respondent did not, however, request a leave of absence until January 13, 1993. Again, Respondent did not comply with the directives listed in paragraph 8. For example, on certain dates Respondent would fail to timely call in and advise she would be late. On another date, Respondent would call in and tell the office she would be late, but not come in at all. During this period of time, Ms. Howell visited Respondent's home on two occasions to discuss the attendance problems. On January 5, 1993, Chief McAllister notified Respondent that her numerous absences constituted abandonment of her position. Nevertheless he allowed her to take a leave of absence beginning that month. Respondent returned to duty on April 26, 1994 and was re-assigned to the Region II office. On May 17, 1994, Respondent's new supervisor, Mr. Gonzalez, requested a conference to discuss concerns regarding Respondent's attendance and accidents in which she had been involved. He directed Respondent to appear on May 25, 1994 at 8:00 a.m. in Mr. Wheeler's office to discuss the concerns. On May 25, 1994, Mr. Gonzalez issued a written summary of the deficiencies in Respondent's performance. The memorandum noted that since her re-assignment to Region II, Respondent had acted in an unprofessional manner by: The unauthorized leave of absences. Tardiness Lack of/or poor supervision of the officer(s). Violation of Administrative Directive, vehicle accident Number 85-1, Case Number 94-12529. The May 25, 1994, memorandum detailed thirteen instances wherein Respondent's deficient performance was identified. The events are chronicled in Petitioner's Exhibit 13 and are adopted by reference. With regard to the May 25, 1994 conference, although Mr. Gonzalez and Respondent's attorney reported to the office, Respondent failed to attend. Respondent later claimed that she had fallen asleep. Respondent was given a reprimand for insubordination for failing to attend the conference after being directed to do so. On June 3, 1994 a conference was held with Respondent to discuss her attendance and punctuality. Respondent was notified that her absence adversely impacted the effective operation of the office. Further, the memorandum memorializing the conference directed Respondent to comply with the following procedures: If a situation arises that you are sick or late and cannot come to work you are to contact the D.S.P. Region II office in a timely manner (1/2 hour) prior to the start of your work day at 8:00 a.m. All weekend task force details are temporarily postponed until further notice. You are to submit a memorandum to me, per our conference, with your plans to improve your attendance and punctuality. * * * Please be assured that assistance will continue to be provided to facilitate your regular attendance. Noncompliance with the directives will be considered a violation of professional responsibilities. On July 20, 1994, Respondent was given thirty days to demonstrate an improvement in her attendance and punctuality. Additionally, Respondent was referred to the employee assistance program for assistance in the matter. For the period April 26, 1994 through July 14, 1994, Respondent was tardy on four occasions. Respondent was also absent from her duties an inappropriate amount. On August 8, 1994, Mr. Gonzalez again directed Respondent to improve her work attendance. For the period July 15, 1994 through August 9, 1994, Respondent was on leave without pay 3.5 days. In addition to the attendance problems, Respondent also was involved in three automobile accidents from June 16, 1994 through August 5, 1994. For the three most recent accidents (reportedly there had been eight or nine others earlier), Officer Brincefield determined that the incidents were preventable. Based upon the frequency of the accidents the DCSP withdrew Respondent's use of a School Board police car. Respondent's personal safety and potential liability for the school district also motivated the decision. With regard to the accident occurring on August 5, 1994 (a date on which Respondent had reported in as sick), Respondent was issued a letter of reprimand for the unauthorized use of a school board vehicle. On August 23, 1994, Respondent was directed to enroll in a defensive driving class. On September 19, 1994, Respondent failed to report to an extra-duty job assignment. On September 28, 1994, a conference was conducted with Respondent to address her performance, attendance, job-related driving record, her fitness for duty, and her future employment status. As a result of the conference, Respondent agreed to select a clinical evaluator from an approved list and to notify Dr. Gray of that selection. Further, Respondent was to remain on alternate duty status pending completion of a defensive driving class and results from the medical evaluation. Respondent did not timely select a clinical evaluator and notify Dr. Gray. On October 11, 1994, Dr. Gray notified Respondent that she had failed to comply with the directive from the September 28, 1994 conference regarding selecting a clinical evaluator. On October 14, 1994, Dr. Gray again notified Respondent of her failure to select a clinical evaluator and that she was considered to be insubordinate as a result. Dr. Gray also noted that since September 28, 1994 Respondent had been absent from her duties eight of the twelve work days. On December 5, 1994, the Superintendent for the Dade County Public Schools recommended that Respondent be suspended and that dismissal proceedings be initiated. On December 14, 1994, the School Board accepted the Superintendent's recommendation, took action to suspend the Respondent and to initiate dismissal proceedings against her and notified the Respondent accordingly. The Respondent timely requested an administrative review of the decision.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the School Board of Dade County enter a final order sustaining the suspension and dismissal of the Respondent. DONE AND ENTERED this 27th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 27th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0285 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs not listed below are accepted. Paragraph 3 is rejected as argument. Paragraph 10 is rejected as irrelevant. Paragraph 22 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. Paragraph 31 with the deletion of the word "numerous" is accepted. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs not listed below are accepted. Paragraph 1 is rejected as irrelevant but is accurate. Paragraph 5 is rejected as irrelevant but is accurate. Paragraph 19 is rejected as irrelevant; Respondent's supervisor assisted her to obtain the leave of absence at this time and subsequently, Respondent, knew or should have known, of the leave procedures. Paragraph 28 is rejected as incomplete statement of the facts and therefore, in isolation, contrary to the weight of the credible evidence. Paragraph 29 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 30 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 31 is rejected as irrelevant and argument. Paragraph 32 is rejected as irrelevant. Paragraph 33 is rejected as contrary to the weight of all credible evidence. Paragraph 41 is rejected as irrelevant but may be accurate. Paragraphs 45 through 47 are rejected as irrelevant or contrary to the weight of all credible evidence. Paragraph 48 is rejected as irrelevant. Paragraph 50 is rejected as irrelevant. Paragraph 51 is rejected as contrary to the weight of all credible evidence. Paragraph 54 is rejected as argument; otherwise is accepted that Respondent was referred to defensive driving school. Paragraph 55 is rejected as argument or contrary to the weight of all credible evidence as stated. Paragraphs 56 and 57 are rejected as irrelevant or contrary to the weight of all credible evidence as stated. Part of the issue regarding the accidents was that Respondent could have prevented the incidents with proper care, could have timely and properly reported an incident, and could have not used the vehicle when on sick day. Paragraphs 58 through 61 are rejected as irrelevant or contrary to the weight of all credible evidence as stated. Paragraph 64 is rejected as incomplete or irrelevant or contrary to the weight of all credible evidence as stated. Paragraph 68 is rejected as contrary to the weight of all credible evidence as stated. Paragraph 70 is rejected as contrary to the weight of all credible evidence. Paragraph 71 is rejected as contrary to the weight of all credible evidence. Paragraph 72 is rejected as irrelevant or contrary to the weight of all credible evidence as stated. Paragraph 73 is rejected as not supported by the record cited (none) or irrelevant. Paragraph 76 is rejected as an incomplete statement or contrary to the weight of all credible evidence as stated. Paragraph 77 is rejected as contrary to the weight of all credible evidence. If Respondent were able to establish physical fitness for duty (disputed by the testimony of the physician), such that she would be able to perform her duties AND that she would comply with directives (the failure of which was the essential basis for her dismissal), she could always seek reemployment with the school district. COPIES FURNISHED: Luis M. Garcia, Esquire School Board of Dade County, Florida 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Jose J. Arrojo, Esquire Dade County Police Benevolent Association 10680 Northwest 25th Street Suite 100 Miami, Florida 33172 Octavio J. Visiedo Superintendent School Board of Dade County, Florida 1450 Northeast Second Avenue Suite 403 Miami, Florida 33132-1308 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
