The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent was a real estate sales associate, holding Florida license number 3055247. Respondent is currently employed in real estate sales. On May 9, 2004, Respondent entered a plea of guilty to a violation of Subsection 800.04(4)(b), Florida Statutes, and to a violation of Subsection 847.0135(3), Florida Statutes, in Case No. 42-2003-CF-002535, Circuit Court, Fifth Judicial Circuit, Marion County, Florida. Subsection 800.04(4)(b), Florida Statutes, classifies commission of sexual activity with a person under 16 years of age as a second-degree felony. Subsection 847.0135(3), Florida Statutes, classifies knowingly using a computer service to solicit sexual activity with a child as a third-degree felony. Respondent entered the guilty pleas upon advice of legal counsel and in order to avoid a public trial. Respondent was ordered to pay a $500 fine and various court costs, and to serve 100 hours of community service. Although a sentence of one day in jail is noted in the court documents, the same documents credit Respondent with one day of incarceration, and according to Respondent, he spent no time in jail. Respondent was classified as a sex offender, subject to the requirements applicable to the classification, and was placed on probation for a period of seven years. The court records note that Respondent's sentence was a downward departure from sentencing guidelines. The court withheld an adjudication of guilt. At the administrative hearing, Respondent provided the only testimony directly related to the events that resulted in the criminal charges. At some point prior to 2004, Respondent joined a computer dating service in order to meet people for social activities and possible relationships. The dating service charged a monthly fee of $20. Users could post personal information and engage in online chats with other users. In joining the service, Respondent was required to attest to the fact that he was at least 18 years of age, and he presumed that other persons utilizing the service would be subject to the same requirement. While using the online chat service, Respondent became acquainted with another individual, and the two decided to meet. Based on the online discussion, Respondent believed that the other individual was of college age. Respondent drove to an unidentified location where he met and picked up the individual. Respondent testified that the person's appearance, including facial hair and the clothing worn, gave no indication that the individual was not of legal age. Respondent testified that he had "one date" with the individual. Several days after the meeting, Respondent was contacted by an investigator from Marion County who advised him that the individual was under the legal age of consent. There was no reliable evidence offered at the hearing as to the actual age of the other individual at the time the events occurred. Pursuant to the investigator's request, Respondent met with the investigator in Marion County, and was subsequently charged with the cranial offenses referenced herein. According to Respondent's probation officer, at the time of the hearing Respondent was in compliance with and was exceeding the terms of his probation. Respondent participates in mental health counseling with a therapist who has 20 years of counseling experience, including 18 years working with sex offenders. Respondent participates in weekly group therapy and in individual counseling and was described as a cooperative client.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent William J. Flanagan, III. DONE AND ENTERED this 6th day of July, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2005.
The Issue The issue is whether Petitioner may terminate Respondent's employment as a custodian, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Respondent's relevant employment with the School Board began on September 15, 2005, when she commenced employment as a custodian at Page Elementary. Respondent's employment with the School Board is governed by the collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (the "SPALC Agreement"). Susan Caputo, the principal of Page Elementary, hired Respondent on September 15, 2005. On October 7, 2005, Ms. Caputo met with Respondent to discuss her concerns regarding Respondent's pattern of absenteeism from work. In a letter to Respondent dated October 10, 2005, Ms. Caputo listed the following instances of absenteeism and/or tardiness: To date: You had an appointment at the District Office. The expectation was that you would work in the afternoon. You called me at 6:20 p.m. to say you were not coming to work. Monday, October 3, you called to say you had car problems, which you had known about since the previous Saturday, and could not come in. I told you this would leave us shorthanded causing increased work load. You did report to work 1 hour late. Wednesday, October 5, you did not come to work citing car problems. Respondent signed the letter to indicate receipt, and the letter was placed in Respondent's personnel file. Ms. Caputo met with Respondent on November 22, 2005, regarding her concerns about Respondent's unsatisfactory job performance. In a letter to Respondent dated November 28, 2005, Ms. Caputo listed the following problems with Respondent's job performance: The kindergarten bathrooms which are part of your regularly assigned schedule were not cleaned nor were the group bathrooms outside the cafeteria. The courtyard floor outside the cafeteria has not been swept or mopped properly. Please follow the steps cleaning the courtyard as reviewed by the Building Supervisor when you were first hired. The media center must be cleaned daily and has been cleaned only twice a week. The garbage has not been emptied in the skills lab. Dust is accumulating in both areas. Stage area is to be swept three times a week. The letter went on to reiterate the proper steps for cleaning the courtyard and the restrooms, as set forth in the custodial checklist that the building supervisor had already given to Respondent. Respondent signed the letter to indicate receipt, and the letter was placed in Respondent's personnel file. Ms. Caputo met with Respondent on December 14, 2005, regarding Respondent's unsatisfactory job performance. In a letter to Respondent dated December 19, 2005, Ms. Caputo set forth the following summary of the items discussed at the meeting: On my weekly check of classrooms, I noticed the computers in the kindergarten classrooms were dusty. I also told you that I had received a complaint from teachers about dust on computers in their classrooms. This is part of your weekly duties. As I stated in our previous meeting on November 22 and my letter to you on November 28, I continue to have concerns about your job performance and attendance. In addition I have concerns about insubordination. Following our meeting, you left my office, made a loud screaming sound outside my door and pounded your fist. A staff member witnessed you slamming the school door and cafeteria table benches. These behaviors are unacceptable. This letter was placed in Respondent's personnel file. A copy of the letter was forwarded to the School Board's district office. Ms. Caputo testified that she was not able to give the letter directly to Respondent because of an incident that occurred on Monday, December 19, 2005, that led to Respondent's suspension. Ms. Caputo testified that Monday, December 19, 2005, marked the beginning of the school's winter break. She had given instructions that the classrooms were to be cleaned by the previous Friday, so that the custodial staff could concentrate on the hallways during the following week. At about 10 a.m., Ms. Caputo observed Respondent cleaning a room in the kindergarten hallway. Ms. Caputo approached to ask Respondent why the room had not been cleaned on the previous Friday. Respondent told Ms. Caputo that she was just "finishing up," but Ms. Caputo could see that the room had not been cleaned at all. Ms. Caputo then inspected other rooms. She found that the classrooms had not been vacuumed and the bathrooms smelled of urine. Respondent then admitted that the only thing she had done on Friday was take out the trash, but also became angry and walked away from Ms. Caputo. Ms. Caputo told Respondent that her actions were unacceptable. Respondent became confrontational and screamed in Ms. Caputo's face. Adam Werner, the building supervisor, stepped between the two women out of concern for Ms. Caputo's safety. Respondent continued to shout at Ms. Caputo, who remained calm and told Respondent that she just needed to do her job. Ms. Caputo then turned to walk away from Respondent, who picked up and flung a rubber doorstop in the principal's direction. As the doorstop fell near her foot, Ms. Caputo heard Respondent scream, "God forgive her." Respondent then walked away. Head custodian Jack Colleli, librarian Jane Garland, and Mr. Werner witnessed the incident. Each of these witnesses provided the School Board with written statements corroborating Ms. Caputo's testimony. Ms. Garland described Respondent's tone as "demeaning, degrading, and somewhat frightening." Ms. Caputo and Respondent had no further interaction after this incident. Ms. Caputo contacted the School Board's office of professional standards, equity, and recruitment to report the incident. Ms. Caputo testified that under no circumstances would she re-hire Respondent. On December 19, 2006, Superintendent James W. Browder suspended Respondent with pay and benefits pending the outcome of the School Board's investigation of the incident. The Petition and suspension without pay and benefits followed as set forth in the Preliminary Statement above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates the employment of Respondent, Cynthia L. Kitchen. DONE AND ENTERED this 25th day of July, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2006. COPIES FURNISHED: Robert Dodig, Jr., Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Cynthia L. Kitchen 145 Riverview Road Fort Myers, Florida 33905 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3988
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Elizabeth B. Clark was employed as a Librarian II with the Information Services Division of the Career Education Center in May of 1976. The Center contains several divisions, has approximately ninety employees and provides support services to the Vocational Division of the State Department of Education. It is funded with federal dollars obtained via grants and contracts with the Department of Education, pursuant to a contract between the state and federal government. The individual coordinators of the Center's various divisions submit a recommended budget to the Center's director, the director prepares an overall budget for the Center and that budget is then submitted to the Department of Education. The Center's budget year runs from July 1st through June 30th. In the 1976-77 budget year and prior thereto, the Center's director had wide discretion as to where and in which categories or divisions within the Center monies would be allocated. The budget for the Information Services Division for the 1976-77 year was approximately $250,000.00, of which approximately $185,000.00 went for salaries for the Division's twenty-seven employees. It was anticipated by supervisory personnel at the Center that there would be a growth in the services provided by the Information Services Division in the 1977-78 budget year. As a consequence, the initial budget proposal recommended by the coordinator of the Division, Ms. Winkler, was approximately $350,000.00. In the early months of 1977, a reorganization of the Information Services Division was contemplated due to the anticipated expansion of services to be provided. Petitioner felt that her new responsibilities in the area of technical services were lesser in scope and that the anticipated reorganization plan was, in effect, a demotion. She complained to her superiors and filed several grievance procedures against the reorganization attempts. In fact, the reorganization was never implemented because of a cutback in funds allocable to the Division. In the latter part of May, 1977, Director Lathrop was advised that funds previously available for the Center's activities had been severely curtailed due to amendments to the federal law. Unlike prior allocations, the federal amendments designated the categories to which the funds must be applied, and funds for informational services were cut the most. As a result of the cutback, the Information Services Division coordinator submitted a second budget proposal recommendation of $124,000.00, with approximately $91,000.00 of that going for salaries. This almost one-half reduction in budget necessitated a reduction in the services to be supplied and a corresponding reduction in staff. Coordinator Winkler thus recommended the elimination of twelve or thirteen positions, nine of which were filled by career service employees. These nine positions included three clerk-typists, one clerk, one library technical assistant, three Librarian I's and one Librarian II, the latter of which was occupied by petitioner. At that time, there existed five librarian positions - four Librarian I's and one Librarian II. In making the determination as to which positions were to be eliminated, Ms. Winkler considered the reduced emphasis in the technical services area thus allowing a reduction in the clerical staff. Having a master's degree in library science, Ms. Winkler assumed that she could pick up some of the library work. After determining to eliminate four of the five librarian positions, she could not justify keeping the Librarian II position, since there would then be no other librarians to supervise. Director Lathrop reviewed and concurred with Ms. Winkler's recommendation concerning the elimination of the twelve or thirteen positions. In making this decision, Dr. Lathrop considered the Vocational Division's priorities among the services to be offered and the reduced need for supervisory personnel in light of the reduction in staff. At that time, the basic duties of the Librarian II, Ms. Clark's position, were technical services and the supervision of other librarians and clerical personnel. Having made the decision to eliminate these positions, the Center properly notified the Personnel Relations Department of Florida State. This Department, after receiving the required approval from the Board of Regents for elimination of the positions, conducted a review of retention points held by the incumbents to determine which employees would be laid off. Thereafter, Ms. Clark was timely notified that she would be laid off effective July 15, 1977, from her position of Librarian II wit the Career Education Center. The official notice stated, in part: "This action in no way reflects upon your performance or ability, but is solely related to budgetary limitations in the grant for which you worked." The Personnel Department notified the State Division of Personnel of the layoff so that her name could be placed on the official layoff register. This Department also sought to find Ms. Clark another position within the competitive area. At the time of the layoff decision, the budget for the Information Services Division was $124,000.00. In addition to this amount, the Division had a grant in the amount of $11,500.00 and they were working on a grant in the amount of $14,750.00. Another grant of $32,000.00 occurred later in the budget year. These additional monies were to be applied to specific projects and services. Since the layoff, the Division has added seven or eight positions, including a faculty position equivalent to a career service Librarian II. The existence of this latter position was not predicted at the time of the layoff. The additional positions have been funded out of the additional grants for specific services and by not filling positions left vacant under the $124,000.00 budget. Ms. Clark did not find other employment until mid-October, 1977. She was not notified of the faculty position opening until three days after she had obtained her new employment. She presently has no desire to return to employment with the Information Services Division, but feels entitled to back pay for the three months in which she was without employment.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the appeal of petitioner be dismissed. Respectfully submitted and entered this 31st day of March, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Betty Steffens, Esquire 212 Westcott Hall Florida State University Tallahassee, Florida 32306 Luther C. Smith, Esquire 121 1/2 South Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is a female who was born on September 6, 1930, and who resides in Tallahassee, Florida. Respondent publishes the Tallahassee Democrat (hereinafter "The Democrat") and maintains its principal place of business in Tallahassee, Leon County, Florida. Petitioner applied for employment by The Democrat as a bookkeeper and was hired on March 8, 1972. In March, 1975, she was promoted to the position of accounting supervisor. Even after that promotion, her duties consisted primarily of routine bookkeeping. Although varied, her work was not complicated and did not involve complex accounting principles or tax planning. Petitioner also supervised and trained the accounting clerks in The Democrat's accounting department. Normally, this involved supervising between eight and ten people. The only persons to whom she was subordinate in the department were the Assistant Controller and Controller. Petitioner has no formal education or training in accounting. She once enrolled in an accounting correspondence course from LaSalle Extension University but never completed the course. When Petitioner was hired, Bill McMasters was the Controller. Roger Hester became the Controller in February, 1974. The position of Assistant Controller was instituted at The Democrat in 1972. The first Assistant Controller was Gary Coates. Coates filled in as the Controller between the time McMasters left The Democrat and Hester arrived. The second Assistant Controller was Hewitt Dupont. Dupont had an accounting degree, had experience with a CPA firm, and was capable of filling in for the Controller. When Dupont was hired, his salary was $12,000 per year. When he left, his salary was $14,400 per year. The third Assistant Controller was Peggy Hively. She was qualified to fill in for the Controller. When Hively was hired, her salary was $12,500 per year. When she left, her salary was $16,400 per year. The fourth Assistant Controller was Evan Ray, who was hired in March, 1979, at a salary of $16,000 per year. All Assistant Controllers at The Democrat have had degrees in accounting and, in some cases, CPA experience as well. When Dupont was hired in 1974, Petitioner discussed with Hester the possibility of her being given the Assistant Controller position when it again became open. Petitioner asked if an accounting degree from Florida A & M university would help her secure that position. Hester advised her that he considered a degree in accounting from Florida A & M University to be of negligible benefit. However, he told Petitioner he would consider her the next time the job was vacant if she learned more about depreciation and end-of-the- month functions. Hester told Petitioner that she should take some accounting courses. However, Petitioner failed to do so. After Hively was hired as the Assistant Controller, Petitioner again discussed with Hester the possibility of her being given the Assistant Controller position the next time it became open. Hester promised her the position if she would continue to work on her depreciation skills. When an employee at The Democrat is seeking a promotion or a transfer to another department, it is not necessary for that employee to file a new application with the personnel department in order to be considered for the new position. During the time Hively held the position of Assistant Controller, she performed many clerical and bookkeeping tasks which could have been performed by the accounting clerks, such as inventories. These functions were performed by the Assistant Controller because there was a limited number of people in The Democrat's work force at that time. By the time Evan Ray was hired, many of these tasks had been reassigned to various accounting clerks. Mrs. Hively went on maternity leave in 1977. During her absence, her duties were assumed by several other persons, including Petitioner. However, Petitioner did not fill in completely for Hively. Philip Horne, Elke Allen and Mary Grabill also assisted with Hively's duties. The functions assumed by Petitioner and the accounting clerks were primarily bookkeeping functions. Hester assumed the more complicated Assistant Controller functions himself. Hively resigned from The Democrat in December, 1978, and her position was vacant for several months. During this time, the Assistant Controller duties were again assumed by several other people, including Petitioner. However, Petitioner did not fill in completely for Mrs. Hively. Philip Horne, Elke Allen and Mary Grabill took over some of Hively's functions. Hester assumed, once again, the more complicated functions of the Assistant Controller. During the years between the time Hively was hired as Assistant Controller and the time Ray was hired in that position, the operations at The Democrat expanded and became more complex. As a result, the position of Assistant Controller changed as new responsibilities were added. Hester found it necessary to rely more on the Assistant Controller for assistance with the more complicated accounting functions which he had previously done himself. Petitioner did not have the experience or technical knowledge of higher accounting to adequately perform the Assistant Controller functions as they were when Ray was hired. Hester considered Petitioner for the job of Assistant Controller when Hively left. However, he concluded she did not have the accounting skills to be able to fill the increased responsibilities of the Assistant Controller's position. He further concluded that it would have taken two to three years to train Petitioner to be able to adequately fill the position. One of the requirements for the Assistant Controller job at The Democrat was the ability to fill in for the Controller when required. Mr. Harwell, the publisher of The Democrat, told Hester that no one at The Democrat other than the person occupying the Assistant Controller position was capable of filling in for the Controller. Harwell instructed Hester that he must select someone for the Assistant Controller position who was capable of assuming the full duties of the Controller. A degree in accounting was not an absolute requirement for the position of Assistant Controller. The criteria for selection for that position were the ability to perform the complete job of the Assistant Controller and the ability to perform the complete job of the Controller when required. Petitioner was harsh when correcting employees under her supervision and displayed a weakness in her ability to effectively supervise people in her department. She corrected employees in a loud and abusive manner in front of other people often enough to cause a morale problem in the accounting department. Evan Ray, the current Controller of The Democrat, was hired as Assistant Controller on March 5, 1979. Ray holds a degree in accounting and business management information systems. He is enrolled in an MBA program. He has managerial experience and experience in computers. Ray, by virtue of his education and prior experience, was more qualified than Petitioner for the position of Assistant Controller. Assistant Controllers at The Democrat may fill in completely for the Controller and must be able to handle the Controller's duties. Coates filled in for the Controller after McMasters left The Democrat in December, 1973, until Hester arrived in February, 1974. Ray filled in for the Controller during the interim between Hester and Denise Brooks when she replaced Hester as the Controller of The Democrat. At the time when Hively left her position as Assistant Controller, Petitioner was not qualified to fill the Assistant Controller position either by experience or by education. She did not have a degree in accounting. She did not have any academic training in accounting. She had not held any position of employment wherein she dealt with any complex accounting procedures, either at The Democrat or at any other employment. In the preceding ten years, Petitioner had not taken any course work in accounting, had not engaged in any study of accounting at home, had not purchased a book in the accounting field and had not borrowed any book in the accounting field from any library. Petitioner left a prior place of employment, Mobile Home Industries, because her job had too much pressure to suit her. When she applied for employment at The Democrat, she specifically stated she did not want a job with a lot of pressure. She admits she does not want either the responsibility or the pressure of being the Controller at The Democrat. According to the 1970 Census, 19,450 of a total work force in Leon County of 43,271, or 44.9 percent, were female. According to the 1970 Census, 3,825 of a total professional work force in Leon County of 9,676, or 39.5 percent, were female. According to projections of the Florida Department of Labor and Employment Security for 1979, 16.4 percent of the managerial and administrative work force in Tallahassee was female, and 28.7 percent of the "other professional" work force in Tallahassee was female. Accountants fall within that agency's category of "other professional." Petitioner's Position at The Democrat is in the officials and management category. In March, 1980, 100 of 264 total employees of The Democrat, or 38 percent, were female; 20 of 48 professional employees, or 41.7 percent, were female; and 9 of 51 managerial and administrative employees, or 17.6 percent, were female. In the accounting department of The Democrat, more than 40 percent of the employees are female. In October, 1980, The Democrat was 2 to 3 percent below the percentage of females in the Tallahassee SMSA. In the professional and technical and in the officials and managers categories, The Democrat was several percent above the area female work force percentages. When The Democrat advertises for a position, it advertises in 13 counties in Florida and 3 in Georgia. It also notifies other papers in the Knight-Ridder newspapers chain of the opening. In 1974, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." There were 19 applicants for the position, 3 of whom, or 15.8 percent, were female. In 1975, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." Three of 5, or 60 percent, of the applicants for the position were female. In 1979, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Three of 14 applicants, or 21.4 percent, were female. In 1980, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Five of 20, or 25 percent, of the applicants were female. In the 4 times that the assistant Controller position at The Democrat has been advertised, 14 of 58 applicants, or 24.1 percent, have been female. When the advertisement for the Assistant Controller position specified "degree preferred," 8 of 24 applicants, or 25 percent, were female. When the advertisement specified "degree required," 8 of 34 applicants, or 23.5 percent, were female. Specification of "degree required" in the advertisement for the Assistant Controller position at The Democrat did not have an appreciable effect on the percentage of women who applied for the job or on the percentage of women who were selected. At the time Evan Ray was hired as Assistant Controller, when Petitioner alleges she was denied a promotion to that position because of her sex and age, there were four persons who had held the Assistant Controller position at The Democrat. These persons were Mr. Coates, Mr. Dupont, Mrs. Hively, and Mr. Ray. One of these 4 persons, or 25 percent, is a female. Prior to the time Evan Ray was Promoted to the position of Controller at The Democrat, there were three persons who had held the Controller position during Petitioner's employment at The Democrat. One of those persons, Denise Brooks, is a female. When Mrs. Brooks left her position as Controller, her salary was $30,000 per year. Evan Ray was promoted into that position at a salary of $25,000 per year. Petitioner does not believe that The Democrat discriminates against women in general or against women in the position of Assistant Controller. Prior to April, 1980, Denise Brooks, the Controller, and Evan Ray, the Assistant Controller, discussed with Harwell, the publisher, and Doris Dunlap, the Personnel Director, the reorganization of the accounting department at The Democrat. The reasons for the reorganization were to distribute the work load more evenly, provide cross-training within the department, relieve the lack of promotability in the department, ease the training burden on Petitioner and provide more effective training, and free Petitioner and two other long-term employees from some of their tasks so they would be able to assist in special projects. The actual reorganization took place in April, 1980, when Evan Ray was promoted to the position of Controller of The Democrat. As a result of the reorganization, the accounting department was divided into three divisions: advertising accounting, circulation accounting, and general accounting. Petitioner remained in charge of advertising accounting, and Mary Grabill and Marilyn Plaskett were promoted to Petitioner's level as supervisors of the other two divisions. Some of petitioner's previous responsibilities were assigned to Grabill and Plaskett, and Petitioner had fewer people to train and supervise after reorganization. Even after reorganization, Petitioner continued to have one of the most important positions at The Democrat in which she is responsible for recording approximately 80 to 85 percent of the company's revenue. When Grabill and Plaskett were promoted, they were given a salary increase. However, even with the increase, they continued to make less than Petitioner. Petitioner's salary was not reduced as a result of reorganization, and it remained higher than the salaries of the other supervisors on her same level. Petitioner continued to receive the third highest salary in the department with only the Assistant Controller and the Controller earning more than she. Grabill had always been in charge of the monthly payroll, which is confidential, and the quarterly payroll reports. With reorganization, she also assumed the time card payroll done by Petitioner so that one person would have the entire payroll. Petitioner was disappointed that her payroll function was taken from her, and she felt humiliated. She would like to have had certain areas of the accounting department under her responsibility after the reorganization rather than some of the areas she was assigned. Prior to reorganization, Petitioner was not able, because of time pressures, to do a good job of training new employees. Additionally, Petitioner was required to fill in for anyone who was absent in addition to performing her own duties. The reorganization of the department has helped the department to run more efficiently than before. For example, Petitioner has more time to spend with the people she is responsible for training and can do a better job of training them. The reorganization of the accounting department was not undertaken to retaliate against Petitioner in any way, but was done solely to improve the efficiency and the managerial accountability of the department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered by the Florida Commission on Human Relations finding that Petitioner, Louise S. Forrest, was not discriminated against on the basis of her sex or age, finding that Petitioner, Louise S. Forrest, was not retaliated against for charging Respondent with discrimination, and dismissing her Petition for Relief with prejudice. RECOMMENDED this 16th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson & Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32303 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Mr. Norman A. Jackson, Executive Director Florida Commission on Human Relations Montgomery Building, Suite 100 2562 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact The Appellant Betty Saunders has been employed by the Department of Health and Rehabilitative Services and attained permanent status within the Career Service Commission in two classifications, Computer Systems Analyst I and Computer Systems Analyst II. By memorandum dated June 10, 1976 which was distributed to Appellant and other employees and by letter dated July 1, 1976, Appellant Saunders was advised of her status as an affected employee in the reorganization of Appellee department and that her position was being moved from Jacksonville to Tallahassee. She was told that she could move with the position and if not she would be retained on the payroll for a period of ninety (90) days or until she obtained a new position, whichever first occurred. Employees of the Appellee made extraordinary efforts to place affected employees in other positions if said employees did not choose to move from Jacksonville to Tallahassee. Appellee made many attempts to place the Appellant in positions, including positions of promotion. However, Appellant declined to accept. A written offer was made Appellant Saunders by letter from H.F. Goodwin, Director, Office of Management Systems. Said offer was a ten (10) percent increase in salary and a promotion to a position as Systems Project Analyst, Class Code 0180, Paygrade 22, located in Tallahassee, Florida. The promotion was declined. By letter dated September 24, 1976, Mrs. Saunders was informed by the Department of Health and Rehabilitative Services that her position was abolished and that she was laid off from employment by the department effective September 30, 1976, and that she would receive two (2) weeks pay in lieu of the fourteen (14) calendar day notices provided by rule. This letter also notified the Secretary of the Department of Administration that the Secretary of the Department of Health and Rehabilitative Services had designated Duval County as a competitive area. On October 11, 1976, the Secretary of the Department of Health and Rehabilitative Services received a letter dated October 4, 1976, from the Secretary of the Department of Administration expanding the competitive area. The agency accepted and acted upon the areas recommended by the Department of Administration, but there was no further written communication with the regard to the lay-off or the designation of the competitive area. Further communication was unnecessary. The Appellant Saunders was not notified that she had a right to request a demotion or any time frame for which she could seek a demotion. There is no evidence to show that Appellant Saunders sought a demotion although she is qualified to perform the job of a computer operator which is a demotion from the position she held as a computer systems analyst. No such notice was necessary or required. The Proposed Orders of the parties submitted to the Hearing Officer have been examined and considered in the preparation of this order.
Recommendation Sustain the action of the agency in laying off the Appellant Betty Saunders. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. COPIES FURNISHED: Ben Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Douglas Whitney, Esquire Room 406, Building 1 1323 Winewood Boulevard Tallahassee, Florida 32301 Mrs. Dorothy Roberts Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY REMAND ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF BETTY SAUNDERS against LAYOFF DOCKET NO. 76-303 DOAH CASE NO. 77-274 by the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES /
The Issue The issue in this case is whether Respondent violated misconduct rules relating to educators and, if so, whether discipline, up to and including dismissal, should be imposed by Petitioner.
Findings Of Fact Petitioner, Orange County School Board, is responsible for the operation of all public schools within the Orange County Public School system. Petitioner is responsible for hiring and monitoring qualified individuals who teach students within the OCPS system. Teachers may be either Professional Service Contract employees or employed under an annual contract. Professional service contract employees are entitled to all rights, privileges, and responsibilities set forth in the Contract Between [Petitioner] and The Orange County Classroom Teachers Association. Respondent received his teaching certificate in the State of Florida in 1985 and has taught school in Orange County since that time. At all times material hereto, Respondent was employed as a Professional Service Contract employee with OCPS. Respondent transferred to WPHS at the beginning of the 2003-2004 school year. Prior to that time, Respondent had been a teacher at Jones High School, also within the OCPS system. Jones High School is a predominantly African-American school which had received two consecutive "F" grades from the Department of Education due to student achievement (or lack thereof) on the Florida Comprehensive Assessment Test (FCAT). WPHS, on the other hand, was a predominantly white school which had not received "F" grades relating to the FCAT.1 Respondent was transferred to WPHS to teach Algebra I, primarily to students who were struggling with Algebra. His students were, by and large, tenth graders who were taking Algebra I, which normally is a ninth grade class. Some of the students had previously failed Algebra; others were taking the class for the first time. When Respondent was assessed by an assistant principal for school year 2004-2005, he received an "ER" grade in planning and delivering instruction. "ER" meant effective, but with recommendations. A comment to his assessment stated, "Mr. DeShay needs to work on motivating his students so they will want to perform to higher standards within his class." The following year (2005-2006), Respondent received another "ER" grade in planning and delivering instructions. This time, the comment stated, "Mr. DeShay needs to plan his instructional time so that students are constantly engaged during the period. This will also assist in classroom management problems." Because Respondent received two consecutive "ER" grades, he was placed on a Professional Improvement Plan (PIP) for the 2006-2007 school year. The PIP targeted three areas of competencies: classroom management and discipline; planning and delivery of instruction; and professional responsibility. The PIP commenced on October 26, 2006, and was to run for a period of 90 school days, i.e., until April 19, 2007. At the end of the PIP period, Respondent had not made improvements in the areas of "planning and delivery of instruction" and "classroom management and discipline." As a result, Respondent received a grade of "NI" on his final assessment. "NI" means the instructor needs improvement in order to meet expected standards. The PIP was then extended another 30 school days, commencing at the start of the 2007-2008 school year. Respondent had never received an "NI" grade on an evaluation before the final assessment in April 2007. Respondent had never been disciplined during the course of his employment with the OCPS system prior to coming to WPHS. He had a reputation as an effective and respected teacher while at Jones High School and previously. During the 2007-2008 school year, while Respondent was still under the extended PIP, Eric Close, a technology coordinator at WPHS, had occasion to log on to Respondent's school computer. Close was, at the request of another teacher, seeking to retrieve a copy of math software believed to exist on Respondent's H drive, located on the school network. While Close was retrieving the software, he noticed a Word document entitled, "Your Neighbor is Watching You." Upon a quick scan of the Word document, Close ascertained that it contained potentially inappropriate material. Close reported his finding to his superior and to administration. When administration reviewed the "Neighbor" story, it was determined to be objectionable and inappropriate due to its content. The story was about a somewhat benign voyeuristic encounter between neighbors, but was certainly not appropriate for high school students. It did, in fact, violate administration's interpretation of OCPS Management Directive A-9. Management Directive A-9 is a work rule prohibiting employees from using school computers for certain specified activities or purposes. Pertinent portions of Management Directive A-9 state: Employee Access to Network * * * District employee shall not conduct a private enterprise, defined as offering or providing goods or services for personal use on school time. District equipment or supplies, including technology, computers and other equipment . . . may not be used for private business . . . unless expressly authorized by the Superintendent . . . The District authorizes employees to use District computer technology resources and data bases for assigned responsibilities. These resources shall be used by employees to enhance job productivity as it relates to District business. These resources shall be used for District-related purposes and not for personal use or gain or for the benefit of private, "for profit" or "not for profit" organizations. Network Security and Acceptable Use a. Employees shall not use the Web or FTP to search or download obscene or inappropriate material from the Internet. Employees using District computers who discover they have connected with a web site that contains sexually explicit, racist, violent or other potentially offensive material must immediately disconnect from that site. The ability to connect with a specific web site does not in itself imply that permission is granted to visit that site. * * * Due Process a. Any employee failing to comply with this Management Directive may be subject to disciplinary action as well as civil liability or criminal charges. Searches and Seizures Employees have limited privacy expectation in the contents of their personal files on the District Network. . . At any time and without prior notice, the District reserves the right to examine electronic mail messages, files on personal computers, web browser cache files, web browser bookmarks, and other information stored on or passing through District computers. Routine maintenance and monitoring of the Network may lead to discovery that a user has violated this Management Directive or the law. An individual search in collaboration with the employee's supervisor or Employee Relations will be conducted if there is a reasonable suspicion that a user has violated the law or this Management Directive. All employees are expected to be aware of and adhere to Management Directive A-9. Each time a user logs on to a District computer, a "pop-up" appears that includes a warning against improper use. The pop-up says in pertinent part: NOTICE TO USERS This is an Orange County Public Schools owned computer. It is for authorized use only. You are responsible for all access that occurs using your logon and password. . . Unauthorized or improper use of this system may result in disciplinary action as specified in Management Directive A-9 . . . as well as civil and/or criminal penalties. [Site to Management Directive A-9 is provided.] The log-on pop-up appeared on Respondent's screen each time he logged on at school. Respondent was aware of Management Directive A-9, but doesn't know if he ever read the entire five- page directive in its entirety. He does, however, acknowledge that he is bound by the terms of that directive. After Close found the seemingly incriminating document on Respondent's computer, Administration conducted a full review of Respondent's H drive and computer in its entirety. Numerous personal files were found which, in the view of school administration, violated Management Directive A-9. A partial list of the questioned files and documents follows: Stories entitled, "Your Neighbor is Watching You" and "Life Changes Quickly" (about a male business executive's sexual interest in his newly hired secretary), and "Luvystory." Security reports for a job where Respondent had worked part time. On-line business (money-making) opportunities. Information about an on-line business (www.Getestore.com). Shopping from internet retailers, including www.Amazon.com, www.Perfume.com, www.Walmart.com and others. Digital pictures of scantily clad women related to a proposed business venture by Respondent. A social networking site called www.blackmembervoices.com with Respondent's profile, photo and contact information. Numerous non-educational sites relating to funny videos, court TV, vacation sites, golf sites, etc. Personal correspondence written by Respondent. It is clear Respondent used his school computer on many occasions to at least visit suspect web sites, engage in business and/or work on non-school-related documents. What is less clear is the extent to which those sites or documents were accessed during classroom periods. Petitioner's technology personnel were able to identify all of the sites and documents existing on Respondent's computer. An exhaustive list of each site, including when each had been accessed, was provided at final hearing. The list clearly shows that Respondent accessed sites or opened questionable files during classroom periods, during Respondent's planning period, and before and after school. The technology people could not, however, ascertain how long each site or document remained on Respondent's screen once it was opened. Respondent maintains that he only worked on documents for brief periods of time and perhaps only accessed them to transfer from a pen drive or diskette to his H drive without working on them at all. He says that he did not open any inappropriate documents in the presence of students. No students, as far as he knows, ever accessed Respondent's computer. It is clear that Respondent's school computer contained documents and materials that violated Management Directive A-9. It is clear those documents, materials and questionable web sites were accessed numerous times. It is not clear how much time Respondent spent on the documents, viewing the sites, or engaging in personal business on the computer. "Willful neglect of duty" has been defined as a constant and continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. See Fla. Admin. Code R. 6B-4.009(4). Respondent's continued use of his school computer for personal reasons, however brief each use might have been, constitutes willful neglect of duty under this definition. By having objectionable and potentially harmful information and documents on his computer, Respondent breached his employment agreement. Respondent was not protecting students from conditions harmful to their learning. Although no students were known to actually see the material, its mere existence was in violation of Respondent's obligations. Further, by taking time out of his work day to engage in personal business and other interests, Respondent has subordinated his professional obligation to his students. Respondent's explanations about his use of the computer bear some discussion. The explanations do not deny the existence of the materials or access to web sites, but seek to minimize the significance of the use (or misuse). As for the short stories on the computer, Respondent says he was taking an on-line literature class and the stories were part of his assignments. He would submit stories and they would be evaluated by instructors. Respondent's intent was to receive some sort of certification of completion from the class and submit that to his employer (OCPS) as evidence that he was attempting to enhance his education. Respondent never finished the on-line course.2 As for use of the school computer, Respondent says (at page 444 of the hearing Transcript), "So anytime I'd use those things, I would--if I had some spare time, I'd pop it in and work on it, and I'd save it on my H drive." This testimony somewhat contradicts Respondent's claim that the documents were only accessed when he was downloading them from a pen drive. The pictures of scantily clad women were explained by Respondent as merely advertisements that had been part of a web sites (Men's Health magazine) he had accessed during school hours. He did not download the pictures to his H drive. Also appearing on the computer were some pictures described as "modeling photos." Respondent says those were pictures he accessed from a modeling site with the intent of creating a DVD or PowerPoint presentation for use by the models in marketing themselves. Respondent says he did not know any of the models and that this proposed business never came to full fruition. Respondent says he worked on that project using his school computer, but during after-school hours. Respondent says that although he had documents and information about his personal businesses on the school computer, he never used the computer to order supplies for his business. He admits ordering some Beanie Babies, but says those were ordered as gifts for people, not as replacement goods for his vending company business. Respondent did draft contracts on his school computer, but says he never used them in conjunction with his business. The security logs on Respondent's computer were done for a friend. Respondent had worked as a part-time security guard at an apartment complex. When he could no longer do so because of the requirements of his teaching job, Respondent was able to turn the job over to a friend. That friend could not write well, so Respondent would do the friend's weekly logs for him on the computer. In total, it is clear that Respondent did utilize his school computer for personal matters and that some of the personal matters were not appropriate for high school students in his charge. The fact that no students saw the inappropriate material--as far as anyone knows--does not minimize the seriousness of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Orange County School Board finding Respondent guilty of misconduct in office and imposing the following sanctions: Uphold Respondent's suspension to date; reinstate Respondent's professional services contract commencing as soon as practicable; and require Respondent to complete remedial training concerning professionalism and use of school property. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. 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 16th day of May, 1991.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also, because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993. This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties. Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily." Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr. Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile. During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made: Two reams of paper be kept under the VDT: A neoprene wrist support be provided to the leading edge of the table work surface on which Bergen could rest his forearms; and A foot rest be provided to allow Bergen to rest his feet. This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations: An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis; A chair ordered specifically for his frame size; A foot rest; A glare-proof screen for his video display terminal; and Use of a standing position as needed for his comfort. The letter added that those accommodations would allow him to perform his job without special hours or work breaks. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks. In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15. 4. Covered in conclusions of law. 5-7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 3. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17-18. Partially accepted in finding of fact 9. 19. Partially accepted in finding of fact 11. 20. Partially accepted in finding of fact 12. 21. Rejected as being unnecessary. 22-23. Partially accepted in finding of fact 12. 24. Partially accepted in finding of fact 13. 25-26. Partially accepted in finding of fact 12. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 13. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 13. 32. Partially accepted in finding of fact 16. 33-34. Partially accepted in finding of fact 17. 35. Partially accepted in finding of fact 15. 36. Rejected as being unnecessary. 37. Partially accepted in finding of fact 17. 38. Partially accepted in finding of fact 1. 39. Partially accepted in finding of fact 20. 40-42. Partially accepted in finding of fact 21. 43-44. Partially accepted in finding of fact 24. 45. Partially accepted in finding of fact 45. 46-47. Partially accepted in finding of fact 23. 48. Rejected as being cumulative. 49. Partially accepted in finding of fact 18. 50. Partially accepted in finding of fact 23. 51. Partially accepted in finding of fact 26. 52. Rejected as being unnecessary. 53. Partially accepted in finding of fact 26. 54-58. Partially accepted in finding of fact 28. 59. Partially accepted in finding of fact 30. 60-62. Partially accepted in finding of fact 29. 63. Rejected as being unnecessary. 64. Partially accepted in finding of fact 30. Respondent: Partially accepted in finding of fact 2. Rejected as being unnecessary. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in findings of fact 4 and 6. Partially accepted in findings of fact 8 and 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 25. Partially accepted in finding of fact 16. Partially accepted in finding of fact 26. 15-16. Partially accepted in findings of fact 23 and 24. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 George F. Schaefer, Esquire The Liberty House 1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116 Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300 675 West Peachtree Street, N. E. Atlanta, Georgia 30375
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of marital status.
Findings Of Fact Petitioner is Julie Wallace. She was employed by Respondent as an automobile salesperson from the last week of June, 1987, until September 12, 1988. Respondent is an automobile dealership, Heartland Pontiac-Buick- Cadillac-GMC Truck, Inc. Its corporate president at the time of Petitioner's employment termination was Nancy Cosgrove. Respondent hired Petitioner on June 18, 1987. Respondent's corporate president at that time was Steven Cosgrove, then husband to Nancy Cosgrove. Petitioner and her husband were married in July, 1987, shortly after she began her employment with Respondent. At the time, Petitioner's husband was also employed by Respondent as an automobile salesperson. The wedding ceremony took place at the Cosgrove home. Respondent does not have a work practice prohibiting nepotism and there are several examples of Respondent's employment of married couples, as well as employment of other multiple members of individual families. Petitioner fared well in Respondent's employment initially. She was recognized by the dealership as the "salesperson of the month" in August, 1987. She was awarded a trip to the "Indy 500" in May, 1988. In spite of Petitioner's productivity during the first year of her employment, Respondent lost a great amount of money for a period of approximately 14 months prior to terminationof Petitioner's employment. Respondent's financial losses resulted from insufficient sales overall in the dealership during that period of time. The separation and subsequent divorce of the Cosgroves coincided with Ms. Cosgrove's assumption of the presidency of Respondent. Ms. Cosgrove took over the dealership in order to prevent it from collapsing financially. For approximately two to four weeks prior to termination of Petitioner, sales records were abysmal for the entire sales force. Further, morale of the sales force was poor as the result of management changes and efforts to cut unnecessary expenses. In conjunction with management attempts to strengthen the dealership's dwindling finances, traditional assignment of demonstrator automobiles to salespeople were eliminated a few days prior to the termination of Petitioner's employment. The elimination of the demonstrator automobiles, coupled with the change in management from Mr. Cosgrove to Ms. Cosgrove, resulted in a verbal altercation between Petitioner's husband and Ms. Cosgrove on September 12, 1988. The upshot of that confrontation was the firing of Petitioner's husband by Ms. Cosgrove. A short time, perhaps an hour later, the sales manager employed by Ms. Cosgrove requested to see Petitioner. He asked Petitioner whether she might prefer to resign in theaftermath of her husband's termination. Petitioner said she did not wish to leave her employment. After Petitioner and Respondent's sales manager concluded their discussion, the sales manager returned later in the day and explained that Petitioner's employment was terminated in view of Petitioner's lack of production or automobile sales. Later, Respondent's sales manager provided Petitioner with a letter erroneously stating that Petitioner had been employed by Respondent for two years. The letter correctly stated that Petitioner was always in the top one third of the sales force in her performance, but did not elaborate on the extent to which performance of all members of the sales staff had plummeted prior to Petitioner's termination. At the time of Petitioner's employment termination, there was only one other salesperson, in addition to the sales manager, remaining on Respondent's sales staff. Through attrition and previous terminations, Ms. Cosgrove had virtually eliminated the sales force inherited from her ex-husband's management by the time of Petitioner's termination. The world of automotive salespersons is extremely competitive and pressurized. Individuals are constantly urged to produce or seek other employment. The fact of previous sales accomplishments provides salespersons no cushion for future periods of sale failures. As stated by Ms. Cosgrove, in a somewhat cold and dispassionate manner, at the final hearing, "you're either a hero or a zero." The discharge of sales personnel after a change of management and an extended period of financial non-profitability is not unusual in the automobile dealership business. Such a movement on the part of Ms. Cosgrove was also motivated by a desire to increase sales and improve morale with salespersons of her own choosing. Salespeople, such as Petitioner, working at Respondent's dealership are "at will" employees, possessing no employment contracts of a specified term, or conditions governing the termination of their employment. Sales employees at the dealership did have a payment plan or agreement with Respondent. The plan in effect during Petitioner's employment permitted her to draw a salary against commissions, provided she had accumulated commissions in-house and elected to utilize this draw procedure versus direct commission payment. At the time of her termination, Petitioner had no accumulations against which to draw a salary. The payment plan did not provide a set term of employment or address standards for employment termination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 18th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1990. APPENDIX It should be noted that both parties incorrectly filed their proposed findings with the Commission On Human Relations as opposed to the Division Of Administrative Hearings. Upon discovery of the error, the parties were permitted to have the proposed findings forwarded to the abovesigned by Commission personnel. Upon review of the proposed findings, it was noted that neither party's proposal is presented in the form of separately numbered paragraphs which would permit a referenced comment or ruling on each proposed finding. Each party's proposed findings have been reviewed and addressed to the extent possible by the foregoing findings of fact. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Julie Wallace 1406 Chloe Terrace Sebring, FL 33870 E. Mark Breed III, Esq. 335 South Commerce Sebring, FL 33870 Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
