The Issue The issue in this case is whether the Board of Opticianry should discipline Respondent, George Martin (Martin), for alleged fraudulent, false, deceptive or misleading advertising in violation of Rule 21P-10.05(2)(a), (b), (f) and (g), Florida Administrative Code, and Section 484.014(1)(e) and (g), Florida Statutes (1983). FINDINGS OF FACT 1/ Petitioner, Department of Professional Regulation (Department), is a state agency charged with regulating the practice of opticianry pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 484, Florida Statutes. Respondent, George Martin (Martin), is and has been at all times material a licensed optician in the State of Florida, having been issued license number DO 000945. In July of 1982, an advertisement was placed by Opti- Mart, an optical company, in the Sarasota Herald Tribune newspaper. A copy of this advertisement is attached and incorporated by reference as Exhibit A. At the time that the advertisement was published, Martin had no ownership or interest as an officer or a director in Opti- Mart, Inc. The advertisement was placed by the owner of Opti-Mart, Mr. Douglas W. Rankin. Prior to placing the ad, Douglas W. Rankin showed the advertisement to Martin, his licensed optician, for his approval. Martin approved the ad. Martin does not recall having seen or approved the subject's advertisement prior to publication, the ad having been placed by Opti-Mart, Inc., although Martin does not specifically deny having seen a copy of the ad prior to publication. At the time of the publication of the ad, Opti-Mart had made arrangements for a licensed optometrist to conduct eye examinations by appointment for persons who called in response to the ad. There was not evidence that any member of the public was actually deceived or misled by the wording of the ad. Any persons who called in response to the ad were informed that the eye examinations were performed by a licensed optometrist and not by Martin or any other optician. Martin did not intend to conduct any eye examination, nor would any such eye examinations be performed by him. Martin had no intention to deceive or mislead any members of the public as to who would be performing the eye examinations. Immediately upon receiving knowledge that there was a question concerning the text of the advertisement, Martin caused Opti-Mart to cease running the ad with Martin's name appearing in the ad.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Board of Opticianry enter a final order dismissing the Administrative Complaint in this case with prejudice. RECOMMENDED this 7th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 7th day of December, 1984.
Findings Of Fact The applicant, Rita Marie Horton, has applied for licensure as a Deception Detection Examiner or intern. Her application reveals that she meets all the criteria stated for licensure as a Deception Detection Examiner with the exception of Sub-section 4, of Section 493.43, Florida Statutes. Horton was approximately four year /* a deception detection examiners with Wells Fargo /* St. Louis, Missouri. During her employment with /* provided Deception Detection services to various /* on a contract bases through Wells Fargo. In /* she did approximately eight to ten tests per /* involved in this work during her entire employment /* Horton's credentials are excellent /* she has conducted approximately 6,000 examinations /* employment with Wells Fargo. /*
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the applicant's application for licensure as an intern be approved and upon demonstrating that she has acquired an additional one years experience during which she has provided services to police departments similar to those provided during her employment with Wells Fargo, that she be licensed as a Deception Detection Examiner. DONE and ORDERED this 27th day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rita Marie Horton c/o Lincoln M. Zion, Inc. 3050 Biscayne Boulevard Miami, Florida 33137 Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz Division of Licensing The Capitol Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 10, 2004.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from May 2003, until July 29, 2004. Respondent, Sacred Heart Health Systems, operates a charitable, not for profit acute care hospital in Pensacola called Sacred Heart Hospital. While employed at Sacred Heart Hospital, Petitioner was a call center resource agent. His supervisor was Jane Nix. During cross-examination, Petitioner responded as follows when asked whether Respondent had discriminated against him on the basis of race: Q: And is it fair to say that you truly believe that Sacred Heart did not discriminate against you because of your race at any time during your employment? A: Yes, it is. Q: And is it also true that Ms. Nicks [sic] did not discriminate against you because of your race at any time during your employment at Sacred Heart Hospital? A: No, sir, she did not. Q: Okay. Your race was never an issue at any time during your employment at Sacred Heart Hospital? A: Not to my knowledge, no sir. Q: You also never complained of discrimination based on race at any time during your employment at Sacred Heart Hospital; is that correct? A: This is correct. Q: And no one at Sacred Heart ever retaliated against you because of your race? A: Not because of race, no sir. Q: And you know this because you would not allow anybody to discriminate against you because of your race; is that correct? A: This is correct. Q: Or retaliate against you because of your race? A: This is correct. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Ms. Nicks (sic) violated the Florida Civil Rights Act; is that correct? A: No sir, I do not. By his own admission, Petitioner does not allege discrimination or retaliation by Respondent on the basis of race.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 11th day of July, 2005, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 11th day of July, 2005.
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, Precision Tune Auto Care, on account of his race, or a result of a sexually abusive work environment in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter, an employee of Respondent, is an African-American male. Precision owns and operates five automobile service facilities in northwest Florida. They are generally referred to as the 9th Avenue (Pensacola) facility, the 9-Mile (Pensacola) facility, the Navy Boulevard (Pensacola) facility, the Fort Walton Beach facility, and the Crestview facility. Though there was no direct testimony as to the number of persons employed by Precision, the evidence is persuasive that each facility has a minimum of 4 to 6 full-time employees. Therefore, there is sufficient competent, substantial evidence to establish that Respondent employs more than 15 full-time employees at any given time. Petitioner’s Hiring On June 14, 2013, Petitioner started work at Respondent’s 9th Avenue location in Pensacola, Florida, as a lube-tech. When Petitioner was hired, Ms. Abbott was the manager of the 9th Avenue location, having started in that position in April 2013. Petitioner was not hired by Ms. Abbott. Rather, Mr. Geiger interviewed Petitioner and approved his hiring for the 9th Avenue lube-tech position. Prior to his employment at the 9th Avenue facility, Petitioner worked at Respondent’s Navy Boulevard facility. He was there for a single day. The circumstances of his departure were not explained. When Petitioner started work at 9th Avenue, he was provided with employee procedures handbooks issued by Respondent and by Lyons HR, Respondent’s payroll management company. Both handbooks contained policies prohibiting sexual harassment, and provided means for reporting complaints. On June 6, 2013, Petitioner signed written acknowledgement pages for each of the handbooks. Respondent’s employee procedures handbook had been revised in March 2013. The written acknowledgement page signed by Petitioner for Respondent’s employee procedures handbook was for an earlier revision. The evidence was persuasive that the page signed by Petitioner was one of a stack “kept in a drawer” for that purpose, a stack that had not been replaced when the handbook was updated. The preponderance of the evidence supports a finding that Petitioner received the employee procedures handbooks issued by Respondent and Lyons HR. In addition, current handbooks were available at each of Respondent’s facilities for the employees’ use. Petitioner alleged in his Employment Complaint of Discrimination that he was hired at 9th Avenue because it was the only one of Respondent’s locations at which African- Americans were employed, which Petitioner attributed to Ms. Abbott’s alleged desire “to be with a black guy.”1/ The preponderance of the evidence establishes that Respondent employed African-American workers at its other locations, in positions including those of manager and technician. Lube-techs are employed by Respondent to perform oil changes. As they gain experience, they may be assigned to perform simple maintenance work. Technicians are employed by Respondent to perform a range of automotive repairs. Technicians are required to own a set of mechanics’ tools sufficient to perform more complex work, involving mechanical work, repair and replacement of water pumps, power steering pumps and the like. When he was hired as a lube-tech at 9th Avenue, Petitioner had neither the skills nor the tools to perform work as a technician. When he started work, Petitioner was perceived as a very good employee, doing work without being asked, cleaning, and generally doing extra work around the facility. As a result, Petitioner received a raise of 25 cents per hour after six-to-eight weeks on the job. Technician work is desirable because technicians have the ability to earn commissions. Petitioner soon began asking for technician work. His requests were refused. Although Petitioner was allowed to do some extra work, Mr. Geiger believed that he was not ready to be a full-time technician. On August 5, 2013, Morgan Hancock was hired as a technician at 9th Avenue. He had previously been a technician at another Precision facility. Petitioner felt as though he should have been given the opportunity to work as a technician, and there began to be friction between Petitioner and Mr. Hancock. As a result of the perceived slight at his not being promoted to technician, Petitioner began to exhibit a “bad attitude” and his performance began to “slack off.” His willingness to do more undesirable tasks that were expected of all employees, including cleaning, deteriorated over the ensuing weeks. He made several requests to transfer to a technician’s position at other Precision facilities, discussing the matter with both Ms. Abbott and Mr. Geiger. The dates of the verbal requests are unclear, though it appears that one was made on September 5, 2013, and one was made to Mr. Geiger within two weeks prior to Petitioner’s November 20, 2013, termination. The evidence is persuasive that the requests to transfer were denied for a number of non-discriminatory reasons. First, as set forth above, Petitioner did not have sufficient skills or an adequate set of tools to work as a technician. Second, Precision had been cutting back on employees, and there were no positions open at the other facilities for someone of Petitioner’s level of skill and experience. Finally, one of Petitioner’s requests was for a transfer to the Navy Boulevard facility. Petitioner had previously worked there for a short period, and the manager simply did not want him back. There is no evidence to support a finding that Petitioner’s requests for transfer were denied as a result of some racial animus, or as a result of Ms. Abbott’s alleged sexual desire for Petitioner. By the time Petitioner was at the end of his 90-day probationary period, his performance was such that he did not receive a discretionary salary increase. The evidence is persuasive that the decision was based on Petitioner’s increasingly poor job performance and not, as alleged by Petitioner, retaliation by Ms. Abbott for Petitioner’s failure to satisfy her sexual requests. On September 26, 2013, at Petitioner’s request, Ms. Abbott wrote a letter on Precision letterhead stating that Petitioner had worked for Precision since August 6, 2012. Petitioner had, in fact, started work for Precision in June 2013. Petitioner characterized the letter as evidence of Ms. Abbott’s willingness to falsify a document as a means of gaining favor with Petitioner, and as an enticement for Petitioner to provide sexual favors. Ms. Abbott testified, convincingly, that Petitioner asked her to write the letter so he could show one year of Florida residency, and therefore qualify for in-state tuition at George Stone, a technical center in Pensacola, where he wanted to take classes to gain skills to be a technician. She wanted to help him, and so wrote the letter knowing it to be false. Mr. McCoy witnessed Ms. Abbott giving the letter to Petitioner, and testified it was accompanied by no suggestive remarks. Her agreement to write the letter on Petitioner’s behalf was ill-advised, and upon its discovery, she was reprimanded by Mr. Gerhardt. The letter does not, by any means, suggest that Respondent or Ms. Abbott discriminated against Petitioner in any way, or that Ms. Abbott used the letter as an inducement for Petitioner to provide her with sexual favors. On October 7, 2013, Bret Ramsey was hired at 9th Avenue. Mr. Ramsey, who is Caucasian, was a technician who had previously worked at Respondent’s Navy Boulevard location. Mr. Ramsey worked at 9th Avenue for two weeks, at which time he transferred back to Navy Boulevard. Mr. Geiger could not remember the reason for Mr. Ramsey’s transfer, but assumed that Navy Boulevard was in need of an experienced and qualified technician. As to whether Petitioner would have been a suitable candidate for the transfer, Mr. Gerhardt testified credibly that the manager of the Navy Boulevard location would not accept Petitioner due to his past employment there. Mr. Ramsey’s transfer does not support a finding that Respondent discriminated against Petitioner on the basis of his race, or that Ms. Abbott was “keeping” Petitioner at 9th Avenue to satisfy her sexual urges. Respondent required its employees to “clock-out” for their lunch hour and leave the premises. By so doing, it was easier to ensure that work hours were not confused with off-duty lunch hours and to “keep payroll straight.” Respondent’s policy was applied evenly to all employees. Ms. Abbott would occasionally buy lunch for all of the employees at 9th Avenue, either when they were busy, or as thanks for their hard work. Petitioner characterized Ms. Abbott’s acts of kindness and gratitude towards the employees of 9th Avenue as “buying me expensive lunches” to induce cooperation with her requests for sexual favors, a characterization that finds no evidentiary support. Petitioner testified that Ms. Abbott would come to work drunk. Aside from the fact that Ms. Abbott’s state of sobriety, or lack thereof, has no bearing on whether Petitioner was subject to racial discrimination or sexual harassment, the evidence was insufficient to support Petitioner’s claim. Petitioner testified that Ms. Abbott cut his hours as retaliation for his failure to submit to her sexual advances. The time records for Petitioner demonstrates that Petitioner worked 40-hours plus overtime on 19 of the 23 weeks that he was employed at 9th Avenue, including five of his last six full weeks of employment. The other four weeks ranged from 35.90 to 38.68 hours per week. Thus, there is nothing to support the assertion that Petitioner’s hours were cut for any reason. Petitioner’s supposition that Ms. Abbott may have altered his time records--which records are managed and kept by Lyons HR--is not persuasive. Petitioner’s Termination On November 18, 2013, Ms. Abbott, after having spent the day cleaning the service pits, instructed employees to place all cars needing service on the facility’s lift racks, and not over the pits. That day, Petitioner pulled a car into position over a pit. Mr. McCoy advised Petitioner that Ms. Abbott had instructed that all cars were to be put on a rack. Petitioner responded to the effect that if Ms. Abbott wanted the car racked, she could rack it herself, sprinkling his response with some choice profanities. His response was loud enough that Ms. Abbott could overhear it through the window between the shop and the reception area. As a result of what Ms. Abbott understandably perceived as insubordination, she prepared a written warning based on the fact that “employee was told multiple times to place vehicles on lifts not over pit [and] refused.” She presented the Discipline/Discharge Form to Petitioner, who refused to sign the form to acknowledge receipt. Mr. McCoy was called in to witness that Petitioner refused to sign the warning. Petitioner became argumentative with Ms. Abbott, who then instructed him to go home for the day. Upon leaving the premises, Petitioner “peeled out” of the parking lot, spraying gravel in the direction of other parked cars. By that time, Ms. Abbott had called Mr. Geiger to discuss the circumstances of the written warning. Mr. Geiger was able to hear the sound of Petitioner’s exit from the premises. That act was taken by Mr. Geiger and Ms. Abbott as a second instance of misconduct warranting discipline. Ms. Abbott discussed the situation regarding Petitioner with Mr. Geiger and Mr. Gerhardt. The decision was made by the three of them, based upon that day’s behavior and Petitioner’s increasingly bad attitude, that Ms. Abbott should terminate Petitioner from employment. November 19, 2013, was a scheduled day off for Petitioner. When Petitioner returned to work on November 20, 2013, he presented Ms. Abbott with a letter in which he requested a transfer to another Precision location. In his letter, he indicated that he had previously discussed a transfer with Ms. Abbott because of “lack of communication, lack of supervision, lack of procedure standards and underlying personality conflicts.” No mention was made of any discriminatory or sexually inappropriate actions on the part of Precision or Ms. Abbott. Petitioner requested that Ms. Abbott sign the transfer request to acknowledge receipt, which she did. Her acknowledgement of receipt of the transfer request does not support a finding that Respondent or Ms. Abbott discriminated against Petitioner. Ms. Abbott advised Petitioner that a transfer was out of the question, and that he was being terminated from employment. Petitioner demanded that she give him a copy of his termination papers. Ms. Abbott advised that he would be faxed his Termination Record by Respondent’s human resources department. Petitioner then left the premises. He was subsequently sent a copy of the Termination Record as stated. Uniform Return When Petitioner left the employ of Respondent, he failed to return the company-issued uniforms, valued at $466.00. On January 6, 2014, after several verbal attempts by Ms. Abbott to recover the uniforms, Mr. Gerhardt sent a certified letter to Petitioner at his address of record. The address to which the letter was mailed, 6881 Twiggs Lane, Pensacola, Florida 32305, is the same address provided to the FCHR by Petitioner in his December 29, 2013 Employment Complaint of Discrimination, and his July 21, 2014 Petition for Relief. Mr. Gerhardt’s letter advised Petitioner that if he did not return the uniforms by January 31, 2014, the matter would be turned over to the state attorney. Petitioner did not return the uniforms and, as promised, the matter was turned over to law enforcement. Respondent has taken legal action to recover uniforms from former employees in the past, including Caucasian former employees. Ultimate Findings of Fact Up to and including the time of his termination, Petitioner did not contact the employee hotline, file a complaint, discuss with co-workers or management, or otherwise claim that he had been the subject of discrimination because of his race, or that Ms. Abbott had acted in a sexually inappropriate way towards him. No witness, other than Petitioner, testified that they ever saw Ms. Abbott dress “provocatively” or in other than standard work attire, ever heard Ms. Abbott tell off-color or racially-charged jokes, or ever heard or observed Ms. Abbott interacting with Petitioner in an inappropriate manner. There was no competent, substantial evidence adduced at the hearing to support a finding that any personnel decisions regarding Petitioner, including those regarding his requests to transfer, his written warning, and his termination, were made due to Petitioner’s race, or in furtherance of any effort to sexually harass or obtain sexual favors from Petitioner. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner’s protected class, i.e., African-American, were treated differently from Petitioner, or were not subject to similar personnel policies and practices.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Precision Tune Auto Care, did not commit any unlawful employment practice as to Petitioner, Reggie Dancy, and dismissing the Petition for Relief filed in FCHR No. 2014-0068. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
Findings Of Fact Respondent is the owner of a sign located alongside U.S. 19, .72 miles north of SR 60 in Pinellas County facing south bound traffic on U.S. 19. When inspected on April 13, 1987, this sign advertised a product not associated with the premises on which the sign is located. However, subsequent thereto the board on the sign has been changed to advertise office warehouses and is now an integral part of the activities taking place on the premises. As such, the sign qualifies as an on-premise sign.
The Issue The issue presented is whether Respondent City of Gainesville committed an unlawful employment practice when it terminated Petitioner's employment.
Findings Of Fact Petitioner is a white male. Petitioner's employment as a police officer was terminated by Respondent City of Gainesville on September 17, 2008. On the evening of June 26, 2008, Petitioner was voluntarily working an extra duty assignment at the Super Wal- Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart had been experiencing problems with juveniles entering the store in large groups and causing disturbances and property damage. At approximately 11:15 p.m., Ms. Felicia Stallworth, a black female, pulled into a handicapped-parking space and hung her handicapped-parking decal from her rear-view mirror. She was accompanied by two children: her twelve-year-old son and her seven-year-old niece. At the time, Petitioner, who was in uniform and wearing his badge, was engaged in conversation with the occupants of a vehicle parked in another handicapped-parking space. Stallworth and the children exited her vehicle and began walking to the store's entrance. Because Stallworth was talking on her cell phone while she was walking, she heard Petitioner say something but did not know what he said. She stopped walking and asked him what he wanted. Petitioner rudely and loudly demanded to see her documentation to prove she was entitled to park in a handicapped-parking space. Stallworth complied by walking back to her vehicle, sitting in the driver's seat with the driver's door open, and retrieving her handicapped-parking registration from her glove compartment. While she was doing so, Petitioner, who was standing just outside the car door, was shining a flashlight into her car so that it was shining in her face. She told him several times to move the flashlight because she could not see, but he ignored her and continued to shine it in the same manner. Concerned for the safety of the children who were standing at the back of the car on the passenger side, she instructed the children to get back in the car so as to be out of the path of passing vehicles. Petitioner rudely and loudly told them to stand in front of the car instead. The children complied. Stallworth retrieved the registration and handed it to Petitioner. She also handed him her placard. She then attempted to get out of the car so she could put her purse on the hood of the car so she could find her driver's license. As she stood up, Petitioner crossed his arms in front of his chest in a blocking motion and, using them, shoved her forcefully against her car and then down into the driver's seat. Her glasses were knocked askew, and the side of her face and earlobe began to burn, likely from being scraped against the doorframe. After she was shoved back into her car, Stallworth was able to find her driver's license in her purse, and she handed it to Petitioner. When Petitioner finished examining her placard, her placard registration, and her driver's license, he handed the documents back to Stallworth and told her to have a nice day. Petitioner walked to the door of the store, turned and looked at Stallworth, and stood there, apparently laughing at her. Some of the numerous witnesses to this encounter between Petitioner and Stallworth came up to her, inquired as to how she was, and walked into the store with her. Petitioner followed Stallworth while she was in the store. When Stallworth left the store, she saw Petitioner walk behind her car, write down her license tag, and then get into his vehicle. Stallworth thought he was "running her tag" and became afraid of what he might do to her next. She called a relative who worked for the Alachua County Sheriff's Office and asked that person to come to Wal- Mart and watch her leave. After calling, she went back into the Wal-Mart to wait. When she came out again, she and Petitioner did not interact. Before Petitioner shoved her against and then into her vehicle, Stallworth had made no threatening remark or gesture that would cause Petitioner to have any concern for his safety. After Stallworth returned to her home, her back started hurting, and her face and earlobe still burned. She telephoned the City of Gainesville Police Department and complained about Petitioner's unacceptable treatment of her. The complaint was forwarded to Sergeant Lance Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m., when he had "cleared" the matter he was working on, he called Stallworth. She described what had happened, including Petitioner's demeanor and her injuries. She told Yarbrough she had obtained the names and telephone numbers of some of the witnesses who had seen the entire encounter. After attending to some additional duties, Yarbrough arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about his use of force on a disabled person. Petitioner's version of what had happened essentially matched Stallworth's, including admitting he had "pinned" her to her vehicle. By the end of their conversation, Petitioner had become confrontational about defending what he had done and demanded of Yarbrough, "Do you have a problem with that?" Yarbrough answered Petitioner in the affirmative. Yarbrough tried to obtain a copy of Wal-Mart's video surveillance tape, but a copy of the tape could not be made by Wal-Mart employees at that hour. After he left Petitioner, Yarbrough, a white male, completed an Administrative Investigation Referral Form regarding Petitioner's treatment of Stallworth, which he considered a violation of the City's Policies and Procedures Number 19, Rule 19. That Form is, essentially, a referral to the police department's internal affairs office. He filed that form on June 27, 2008, in his name and in Stallworth's name. Stallworth filed her own form on that same date. Wal-Mart has a policy of releasing copies of its video surveillance tapes only to law enforcement officers conducting official business. Internal Affairs investigator Sergeant Jorge Campos, a white male, contacted Wal-Mart and arranged to obtain a copy of the video of Wal-Mart's parking lot showing Petitioner's encounter with Stallworth. When he later called Wal-Mart to make sure the copy was ready, he was told that another police officer had come to pick it up, and the copy had been given to him. Campos requested an additional copy and when he went there to pick up that copy, the Wal-Mart loss prevention employees showed Campos the video and also a video of Petitioner picking up the copy of the video that had been made for Campos. Since Petitioner had come there in a police car and in uniform, they had assumed that Petitioner was obtaining the copy of the video for official purposes. In fact, Petitioner never reported to the police department that he was conducting an investigation and that he had obtained evidence of his encounter with Stallworth. Further, he never turned over to the police department his copy of the video so it could be preserved as evidence in the evidence room, as required by department policy. Petitioner did not obtain the video for law enforcement purposes, therefore, but rather for personal purposes. Campos watched the copy of the surveillance video he had obtained from Wal-Mart in conjunction with his investigation. He also interviewed and obtained sworn statements from Yarbrough, from Stallworth, and from all of the identified witnesses who were willing to speak with him about what they saw. During the course of the internal affairs investigation, it was discovered that Petitioner had also repeatedly contacted Stallworth's personal physician, allegedly in his capacity as a police officer, to ascertain what Stallworth's disability was that would have made her eligible for a handicapped placard. Eventually, Petitioner did speak with a doctor in that office who disclosed Stallworth's disability. Campos attempted to interview Petitioner, but Petitioner called in sick and did not appear for the scheduled appointment. Campos' further attempts to interview Petitioner were unsuccessful. At the conclusion of his investigation, Campos prepared his report and consulted with the Chief of Police as to an appropriate disposition of the matter. It was concluded that Petitioner had violated Rule 19 regarding his encounter with Stallworth by his (1) excessive use of force, (2) obtaining a video recording under the color of a law enforcement officer for personal use, and (3) obtaining medical information under the color of a law enforcement officer without proper legal service. It was determined that Petitioner's employment should be terminated. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or improper conduct or indecency, whether on or off the job[,] which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community." The range of penalties for the first offense is from instruction plus 5 days' suspension up through dismissal, and for the second offense is dismissal. Petitioner exercised his right to file a grievance regarding his termination and participated in a multi-level grievance process within the City. His grievance was unsuccessful, and he was terminated from his employment as a police officer. At no time during Petitioner's conversation with Sergeant Yarbrough, during the internal affairs investigation, or during the City's grievance process did Petitioner raise any allegation of disparate or discriminatory treatment of him by the City due to his race or his sex. Sergeants Yarbrough and Campos are, like Petitioner, white males.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 16th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Jarrod Rappaport 402 Northwest 48th Boulevard Gainesville, Florida 32607 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner's witness admitted that all of the sign were permittable with the possible exception of the sign located .90 miles east of US 27 which is in the city limits of Bartow (Sign #5, Exhibit 1). Respondent has applied for permits for those signs for which permits are required. Sign #5 was first erected in 1942 by Respondent's predecessor in title and was rebuilt in 1952. The lessor of the property when the sign was first erected was the City of Bartow and it was sold to a private party in 1944. At the time the sign was erected and rebuilt there was no zoning ordinance in Bartow. Non-conforming lawful uses of property before the enactment of Bartow' s Zoning Ordinance were grandfathered and remained lawful after passage of the Zoning Ordinance (Exhibit 2, Section 4)
The Issue Whether Respondent committed an unfair labor practice by discriminating against Petitioner on the basis of race, national origin, color, or age; and by retaliating against Petitioner by terminating her employment.
Findings Of Fact Ms. Pfeiffer began her employment at Raulerson Hospital in December, 2007. She worked as a full-time Registered Respiratory Therapist (RRT) in the Cardiopulmonary Department. She was born in 1961, and according to her, she comes from German, Filipino, Hispanic, and Native American descent. Shawn Poland served as the director of the Cardiopulmonary Department; Titus Henderson and Sherree Macy served as supervisors, directly supervising Ms. Pfieffer. Robert Lee was the Chief Executive Officer of Raulerson Hospital in 2012. Full-time respiratory therapists generally work three shifts per week, and may have many days between shifts. They assist patients with airway management, by dispensing medication. Some patients are on ventilators, some are in the intensive care unit, and some are on life support. Therapies include comfort measures; that is, patients receive therapies in order to breathe easier. Once physician orders are received for respiratory therapy, patients are divided equally between the therapists on duty during a particular shift; therapists then go to each patient to provide respiratory treatment. Christine Goolsby was a respiratory therapist who worked alongside Ms. Pfeiffer. Sometime in March 2012, Ms. Goolsby and Ms. Pfeiffer were working the same shift. Ms. Gooslby noticed that some patients assigned to Ms. Pfeiffer were showing up in the computer system in red text, which meant that the patients had not yet received a treatment. She asked Ms. Pfieffer about those patients, with the intention of helping Ms. Pfieffer administer medication to the patients. Ms. Pfieffer indicated that she did not provide treatment to “DNR” (do not resuscitate) patients. Ms. Goolsby, who had been feeling like she had been helping other therapists quite a bit and running around more than usual, was upset to hear that Ms. Pfeiffer chose to not provide treatments to DNR patients. Ms. Goolsby told Mr. Poland about Ms. Pfieffer?s position on DNR patients. Mr. Poland, Ms. Goolsby, and the Human Resources Director met. During the meeting, Ms. Goolsby reported other personnel issues she had with Ms. Pfeiffer and with another therapist, Monica Beckham. Ms. Goolsby was asked to write an email with details regarding her conversation with Ms. Pfeiffer, and the other issues she had raised about her colleagues. Ms. Goolsby sent an email to Mr. Poland and the Human Resources Director on March 9, 2012. In her email, she explained: “Maria also made a comment this past weekend that she was not going to do DNR treatments on four of her patients. She stated „DNRs do not need treatments.? I replied if it?s a doctor?s order it has to be followed.” Mr. Poland was concerned about patient safety, and decided to suspend Ms. Pfieffer pending an investigation into the allegations that had been made. The Human Resources Department contacted Ms. Pfeiffer by telephone, informing her that an investigation was going to be conducted, focusing on whether she was failing to provide treatment to DNR patients. During the telephone conversation with the Human Resources Department, Ms. Pfeiffer denied the allegations, insisting that it was against her “moral code” to refuse giving respiratory treatments to any patient. Mr. Poland asked Connie Kooper, a senior clinical analyst who is in charge of Meditech (a uniform computer system for charting medical records), to run a report on Ms. Pfeiffer, isolating every DNR patient who was not given treatment. Ms. Kooper was unable to comply with this request because DNRs are difficult to track on the computer system. Given that a patient or family can change the patient?s DNR status on a daily or even an hourly basis, it becomes onerous to track DNR status through Meditech. Instead, Ms. Kooper was able to run a report on treatments that had been given and had not been given during a 45-day period, which might show a trend of some kind. The report also showed any comments provided by the therapist; if a treatment had been skipped, it would show the reason it was skipped, if the reason had been recorded by the therapist. There are numerous reasons why a therapist might skip giving a treatment to a patient; the patient could feel nauseous, a patient might have a rapid heart rate at the time of the visit, the patient might not be in the room when the therapist arrives, or the patient or the patient?s family might refuse the treatment for a variety of reasons. The therapist must provide a reason for not providing a treatment in Meditech, or in a written chart. Mr. Poland asked Ms. Kooper to run the same report on three other respiratory therapists in addition to Ms. Pfieffer. Ms. Pfeiffer?s report reveals numerous treatments that were not provided to patients, with no documented reason for not giving the treatment. The other three therapists had very few instances of treatments that were not provided, and for those instances where treatment was not provided, reasons were documented in Meditech for almost all of them. Mr. Poland also accessed each patient?s electronic Meditech process intervention notes to see if Ms. Pfeiffer had documented the reason why she had not provided a respiratory treatment to the patient. Ms. Pfeiffer had failed to document the reasons there, too. During the investigation, Mr. Poland also found discrepancies in Ms. Pfieffer?s documentation of medications that had been given to patients. This caused Mr. Poland to believe that Ms. Pfeiffer had falsified medical records. Finding that Ms. Pfeiffer?s conduct was deliberate and purposeful, Mr. Poland met with Ms. Pfeiffer and explained what he had discovered through the course of the investigation. Ms. Pfeiffer gave no explanation for why she had failed to provide the treatments, and why she had failed to document the reason for not giving the treatments. Mr. Poland decided to terminate Ms. Pfeiffer based on the results of the investigation. At that time, Mr. Poland did not know Ms. Pfeiffer?s race, national origin, or age. No new employees were hired to replace Ms. Pfeiffer. No credible evidence was presented establishing the age, race, or national origin of the employees who replaced Ms. Pfeiffer. Ms. Pfeiffer never appealed the decision to terminate her through the employee dispute resolution program. She also never complained of any type of discrimination during the course of her employment.1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 22nd day of July, 2013.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Julie Wells is the principal of AccuStaff.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Van Gandy be dismissed. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julie Wells AccuStaff 5710 North Davis Highway, Suite 5 Pensacola, Florida 32503 Van Gandy 8580 Vickie Street Pensacola, Florida 32514 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
