The Issue May Petitioner be granted an exemption to work in a position of special trust?
Findings Of Fact Petitioner was arrested and charged with battery on a spouse under Section 784.03(1)(a), F.S., on April 11, 1992. The incident arose when Petitioner's husband approached her in a threatening manner. The two had been having marital problems. Although he had never hit her, Petitioner's husband was threatening to hit her on this occasion. Petitioner was afraid. She attempted to escape and tried to telephone her pastor for advice. In the meantime, while she was telephoning, her husband approached her again and she hit him on the right side of the head with the telephone receiver. There is no evidence to suggest Petitioner's husband was a minor at the time. Petitioner's husband sustained bruises, and the side of his head was swollen. Petitioner was arrested and jailed. She spent two weeks in jail because she was unable to post bond. Her husband attempted to withdraw the charges. Adjudication was withheld. Petitioner was formerly employed by Vistakon, a cleaning service, but she left that employment in 1993 due to disability arising from an arthritic hip. Petitioner and her husband finally separated February 1, 1996, and there is no reason to believe the 1992 incident will be repeated. Although she and her husband have remained married, Petitioner has been involved in no further violent incidents since 1992, nor has she had any involvement with law enforcement in that period. Petitioner presently is taking classes toward completion of her GED certificate. Petitioner is an active member of the True Way Bible Deliverance Church. She sporadically cares for children of friends and children in Sunday School. She hopes to qualify for a child care license someday.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting Petitioner an exemption to work in a position of special trust. DONE and ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1745 The following constitute specific rulings, pursuant to Section 120.59(2), F.S., upon the Respondent's proposed findings of fact. Petitioner's three unnumbered paragraphs are accepted in substance, without the argumentation. Respondent's nine proposed findings of fact are accepted as slightly modified to more accurately reflect the record. COPIES FURNISHED: Ethel R. Denson 6951 West Virginia Avenue Jacksonville, Florida 32209 Roger L.D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204 Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to discrimination on account of her age by her termination by the Respondent, Episcopal Children's Services.
Findings Of Fact The Petitioner was born on July 25, 1940. She had been employed with the federally funded Head Start Program in Bradford County, Florida for over 30 years. In 1996, the contract to operate the Head Start Program in Bradford County was submitted for competitive bids. The Respondent Agency made a bid for the contract and was awarded the contract. The Respondent begin operating the Head Start Program in the fall of 1996. The Petitioner thereupon applied for employment with the Respondent on September 24, 1996. She was hired by the Respondent in the position of Lead Teacher. As Lead Teacher she had the responsibility to supervise other teachers at the Head Start Center in Starke, Bradford County, Florida. Her job description included as a part of her responsibilities: To supervise the day-to-day operations of the center assigned during working hours. . . . 7. To directly supervise the teaching staff at the assigned center. As lead teacher, the Petitioner received a starting compensation of $16,978.00, while other teachers received a starting compensation of $15,260.00 per year. In addition to receiving a higher rate of compensation, the Petitioner would approve the daily lesson plans posted by other teachers. The other teachers submitted their time sheets to the Petitioner. The other teachers also informed the Petitioner when they were going to be absent and the Petitioner would arrange for substitutes to replace them. The other teachers would provide work requests regarding their classrooms to the Petitioner for appropriate handling. On June 3, 1997, personnel of the Head Start Center in Starke took the children enrolled at the center on a field trip to the movie theatre in Starke. After the Petitioner and other teachers, had left the Center, a child was discovered unattended in one of the classrooms at the Center. The employee who discovered the child brought the child to Alise Watson at the Center. Ms. Watson was the social worker at the Center at that time. Ms. Watson brought the child with her to the movie theatre and reported the incident to the Petitioner, because the Petitioner was lead teacher. Under the Respondent's policy, this incident was one which should be reported, both to the Respondent's Jacksonville Office and to the Florida Abuse and Neglect Hotline telephone line. Ms. Jenkins did not ask Ms. Watson if the incident had been reported, either to the Respondent's central office or to the Florida Abuse Hotline. Ms. Jenkins had received copies of the Respondent's policies regarding reporting incidents of abuse or neglect and acknowledged at the hearing that the incident was one which was required to be reported. On June 4, 1997, Ms. Lenora Gregory, the Respondent's Head Start Director, learned of the June 3rd incident. On that date she met with the teacher in whose classroom the child had been left and that teacher's assistant. After interviewing the teacher and her assistant, Ms. Gregory and the Respondent recommended to the Head Start Policy Council that the teacher and her assistant be terminated because of this incident. Under the Head Start Program, the Respondent has the authority to recommend termination of a Head Start employee, but only the Head Start Policy Council has the authority to actually terminate an employee. The Head Start Policy Council accepted the Respondent's recommendation and terminated the employment of the classroom teacher and the teacher's assistant. The Respondent investigated the Petitioner's responsibility for the June 3, 1997, incident as well. The Respondent's policy placed the responsibility for reporting the incident on the lead teacher: The person noticing or suspecting abuse and/or neglect must immediately notify the lead teacher of the center. If she is unavailable, notify the secretary or social worker. They will notify the Child Abuse Registry at 1-800-342-9152. Failure to do so carries up to a $500.00 fine and/or 60 days in jail. Ms. Lenora Gregory and Dr. Susan Wilkinson, the Respondent's chief executive officer, requested that the Petitioner meet with them to discuss the June 3, 1997, incident. The Head Start Policy Council, at the request of Dr. Wilkinson, authorized Dr. Wilkinson to offer the Petitioner the opportunity to resign or retire. The alternative would be a recommendation by the Respondent to the Policy Council that the Petitioner's employment be terminated. On August 19, 1997, a meeting was held to discuss the Petitioner's employment with the Respondent. The Petitioner was present with her attorney, as was Dr. Wilkinson, and Ms. Gregory. The June 3, 1997, incident was discussed. Dr. Wilkinson asked the Petitioner how long she had been employed with the Head Start Program and the Petitioner responded that she had been employed for 30 years. Dr. Wilkinson then offered the Petitioner an opportunity to resign or retire as a face-saving measure for the Petitioner. Dr. Wilkinson told the Petitioner and her attorney that if she did not resign or retire the alternative would be termination. The Petitioner decided to neither resign nor retire and the Respondent recommended her termination. That recommendation was accepted by the Head Start Policy Council. The reason for the termination was the Petitioner's responsibility for the June 3, 1997, incident, both failing to report the incident, as required of the lead teacher, and failing to take appropriate steps to avoid the incident in her role as lead teacher and overall supervisor of the Center. The Petitioner contends that she was not "available" and that therefore under the Respondent's policy, it became the duty of Alise Watson, as social worker, to report the incident. Ms. Watson did not report the incident. No disciplinary action was taken against Ms. Watson. On August 26, 1998, the Equal Employment Opportunity Commission issued its notice of dismissal and a "right to sue" to the Petitioner, being unable to conclude that there had been a violation of the law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue Whether Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Petitioner is currently disqualified from working in a position of special trust as a result of a felony robbery conviction in 1985; two felony petit theft convictions and one grand theft conviction in 1987; two felony petit theft convictions in 1989; one felony cocaine possession and one felony petit theft conviction in 1993; and one felony petit theft conviction in 1994. Petitioner habitually used illegal drugs from 1985 until 1995. In order to "feed her habit" she shop-lifted. As a result, she has been in prison four separate times. There is no direct evidence to suggest that Petitioner ever stole from patients in her care or that her drug abuse ever endangered such patients. However, she admitted that in August 1985, she resigned from a position providing care for the developmentally disabled at Tacachale State Hospital because of her drug use. Petitioner applied and was denied an exemption to work in a position of special trust in 1989. Petitioner next applied for an exemption in December 1997. After a hearing on December 3, 1997, the Department's Exemption Review Committee denied her exemption request due to a report which had been prepared back in 1989 when Petitioner had only been drug-free for eight months; because Petitioner had relapsed into addiction when her previous exemption hearing resulted in denial of the exemption; and because Petitioner was still on probation for her last criminal offense. However, the committee indicated in its report that Petitioner should be reconsidered for an exemption after she was off probation for a significant period of time. Petitioner timely filed for this formal Section 120.57(1) Florida Statutes, de novo proceeding. At formal hearing, Petitioner claimed that she last used illegal drugs on October 6, 1993. Other evidence, including her 1994 conviction for petit theft, suggests that drugs controlled her life more recently than 1993. However, based on her candor and demeanor while testifying and all the other evidence, I conclude that Petitioner simply misstated the year of her last drug use. At some point, Petitioner walked out of a drug rehabilitation facility due to resuming drug use. Petitioner ultimately went through drug rehabilitation at Bridge House Residential Treatment Program from January 29, 1995, through March 25, 1995, and continued successfully in its aftercare program. Since 1993, Petitioner has obtained her high school diploma (GED). Petitioner attended six months of classes with Santa Fe Community College Work Exploration Department. After completing those classes, she voluntarily began attending Job Club at Santa Fe Community College, where she has worked well with the disabled. Petitioner briefly worked at Alternative Care, Inc., before the Department's disqualification notification in 1995. Alternative Care, Inc., is a small group home for disabled persons. As of his October 31, 1995, letter, Alternative Care Inc.'s Director considered Petitioner eligible on her merits for rehire. Petitioner has been a client of the Florida Department of Labor and Employment Security, Division of Vocational Rehabilitation since May 1, 1995. Mr. Warren McCluney and Jerald Means of that agency recommended in a letter that she be granted the exemption and that she be allowed to work with mentally challenged individuals. They related in their letter that they would trust Petitioner with their own mothers. Warren McCluney is currently Petitioner's vocational rehabilitation counselor with the State of Florida Department of Labor and Employment Security, Division of Vocational Rehabilitation. He has worked as a vocational rehabilitation counselor for 18 years. He did not know Petitioner before assuming this professional relationship with her. Mr. McCluney also represented that he had simultaneously worked for 18 years as a part-time uncertified substance abuse counselor at Vista Pavillion, which is an inpatient and outpatient rehabilitation facility. Petitioner has never been one of Mr. McCluney's substance abuse clients at Vista Pavillion. Based on his education, training and experience, Mr. McCluney is confident that Petitioner's personal rehabilitation, education, and current support network would prevent her relapse into drug abuse. He has observed her withstand stressors since 1995 and believes she will remain drug free despite any outcome of the instant formal proceeding. Mr. McCluney had sufficient faith in Petitioner so as to get her a job with his brother in January 1996. Since that time, Petitioner has been continuously employed part-time in a responsible position as a receptionist at McCluney Prosthetics. Her employer, T. Howard McCluney, recommended, in a letter, that the exemption be granted to Petitioner. Therein, he related that as his office receptionist, Petitioner handles patients in a respectful and professional manner, handles cash, and works on special projects as assigned, including collections. He described her as "trustworthy,... reliable, dependable, and a hard worker." Petitioner has two adult daughters. One of them, Helen Harris, testified at formal hearing. Petitioner's rehabilitation over the last three years has made Ms. Harris very proud. During the last three to four years, Ms. Harris has had an opportunity to closely observe Petitioner. During this time, Ms. Harris has observed Petitioner taking her employment with McCluney Prosthetics very seriously and dependably working four days per week (Tuesday-Friday) for a total of 20 hours each week. For the last year, Ms. Harris has been able to trust Petitioner as never before and can finally depend on Petitioner to properly oversee care of Ms. Harris's young children. Petitioner has been on felony probation since December 20, 1994, the date of her last conviction. According to a January 7, 1998, letter from her Department of Corrections Probation Officer of nearly four years, Petitioner has reported in a timely fashion and has consistently remained in compliance with the standard conditions of her probation. As of the date of the letter, Petitioner also had completed every special condition of her probation, with the exception of her monetary obligations. Her probation was due to terminate December 19, 1999, provided she continues as she has and also completes her monetary obligations. However, Petitioner had, in fact, completed her monetary obligations under the terms of her probation prior to formal hearing herein on April 7, 1998, and her probation officer intended to request the court to terminate her supervision early. His April 7, 1998, letter stated: "I wish I had one of her (Petitioner) for each of the 135 offenders I supervise. She's a great case, and truly wants to proceed with her life." Ms. Harris and Mr. Warren McCluney, each of whom testified at formal hearing, were adamant that no one would suffer if an exemption were granted so that Petitioner could work in her chosen field of humanitarian care.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 18th day of May, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1998. COPIES FURNISHED: Blondell Daniels 112-B Northeast 42nd Place Gainesville, Florida 32609 Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether disciplinary action should be taken against respondent as a result of disciplinary action against him by Madison County, Florida.
Findings Of Fact Respondent is now and was at the times alleged in the administrative complaint a registered general contractor, License No. RG 0007907. His registration includes Madison, Leon, and Taylor Counties. (Petitioner's Exhibit 7, Stipulation) On October 28, 1975, respondent entered into an agreement with the Mt. Zion AME Church, Madison, Florida, to finish the construction of a church for the sum of $57,975.00. The job was to be completed within seventy (70) working days and included various items such as carpeting, stained glass windows, light fixtures, and vinyl floor covering to be furnished by the contractor. (Petitioner's Exhibit 6) At the time respondent commenced work, the church building had been partially completed to include walls and roof. There was an old church building immediately adjacent to the new church which the church officials orally promised to have removed. This was not accomplished for approximately two months and this caused delayed completion of the contract work. (Testimony of Knight) During the course of contract performance, the pastor of the church informed respondent that certain changes in the work were desired. These included addition of two more outside doors at a cost of $1,200.00, changing the direction in which four outside doors swung at a cost of some $800.00, movement of a wall at a cost of $1,500.00, addition of flower pots for $300.00, and insulation work and materials at $800.00 to $1,200.00 dollars. Additionally, the church officials ordered more expensive carpet than had been called for under the contract and imposed an additional requirement of placing windows in the wing of the church. As a result, the total cost of performance escalated to over $69,000.00, of which sum the church paid respondent only some $43,000.00. (Petitioner's Exhibit 4, Testimony of Knight) In view of the insufficient funds furnished to the respondent by the church, a number of subcontractors' bills could not be paid. Several of these firms complained to Paul B. Williamson, Madison County Building Inspector. He was the first such official appointed in Madison County and, as a result, was just setting up inspection programs and procedures at the time. Williamson did not contact respondent personally concerning the alleged unpaid debts but, by letter of June 15, 1976, ordered him to "show cause" before July 7, 1976, as to why his county contractor's license should not be revoked for unwarranted cost overruns, failure to make financial settlement with subcontractors and permitting accumulation of liabilities of labor and material costs on the church project. In response to this letter, respondent provided Williamson with a copy of his letter, dated June 29, 1976, to the Mount Zion AME Church, which included a financial report and justification for cost overruns in excess of the contract price. Subsequently, at a church board meeting that Williamson and respondent both attended, the latter explained the reasons for the higher costs than originally contemplated, but was of the opinion that the matter could be straightened out within thirty days. About sixty days thereafter, the church was completed and Williamson approved it, except for an air conditioning problem. (Petitioner's Exhibits 2, 4, Testimony of Knight, Williamson) Williamson was under the impression that there was no written contract on the project. The only documentation he had concerning agreed and actual costs was the copy of the financial report respondent had provided him, and several bills of subcontractors, plus oral statements he had heard from various church members. Without further pursuing the matter to verify respondent's claims as to extra work and the agreed and actual costs involved, Williamson, by letter of August 16, 1976, revoked respondent's county license on four specified grounds, two of which had not been noted in his June 15 letter to show cause. The additional grounds were unsatisfactory workmanship and failure to provide adequate supervision for construction. The other two grounds dealt with irregularities in administering funds provided by the church and lack of agreements with the church on extra work performed. All of the grounds were set forth in general terms only and did not specify details of respondent's alleged derelictions. Williamson conceded at the hearing that the building was satisfactory except for minor details, and respondent's assistants on the job testified that respondent properly supervised the work. Although Williamson purported to take his revocation action "according to powers vested in me as chief building official of Madison County," no evidence was presented as to the extent of his authority to take such actions or the existence of any specified grounds therefor in any county ordinance or building code. (Testimony of Williamson, Austin, Waiters, Petitioner's Exhibit I) In view of the preceding findings, it is further found that the evidence fails to show that the revocation of respondent's county license by Madison County was either authorized or warranted under the circumstances.
Recommendation That the complaint against respondent David Knight, d/b/a Knight Construction Company, be dismissed. DONE and ENTERED this 26th day of July, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Augustus D. Aikens, Jr., Esquire 449 West Carolina Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner was the subject of an unlawful employment action committed by Respondent.
Findings Of Fact Mr. Coles is a person of the black race. He was first employed by Sacred Heart, in Pensacola, Florida, on April 29, 1999, as an environmental service worker. At the time of his discharge on May 7, 2004, he was employed as an operating room technician. Sacred Heart operates a hospital in Pensacola, Florida, that employs more than 15 people. Mr. Coles believes that he received written Disciplinary Actions that should not have issued. He believes that he was the subject of these Actions because he is black and because he objected to what he believed to be an illegal abortion performed on a 17-year-old girl without her consent. He is of the opinion that blacks are disciplined unequally when compared to their white counterparts. Mr. Coles also believes that he has been discriminated against because he is a minister. However, he did not list that occupation on the Employment Charge of Discrimination he filed. Mr. Coles' supervisor during the period August 2001 through May 7, 2004, was Jim Jones (Mr. Jones). Mr. Jones is a nurse who has a bachelor of science degree in biology from the University of California at Riverside, a bachelor of science degree in nursing from Montana State University, and a master of education degree from George Washington University. He retired from the U. S. Navy at the rank of Commander and was employed by Sacred Heart in 1988. Mr. Jones promoted Mr. Coles to his position as a technician in the operating room. Mr. Coles asserted that Mr. Jones was a racial bigot, but the only direct evidence produced tending to prove Mr. Coles' assertion of bias was a calendar owned by Mr. Jones upon which was a joke regarding "rednecks." This purported evidence that Mr. Jones was biased is not persuasive. Mr. Coles testified with regard to a list of persons working for Mr. Jones who were disciplined by him. Despite his assertion that Mr. Jones disciplined black employees disproportionately, a statistical analysis of his list does not support this. Disciplinary Action Reports signed by Mr. Jones were presented to 35 persons during the period January 2003 to March 2004. Of the 35 persons disciplined, 14 were black, 18 were white, two were Asian, and one was Hispanic. Mr. Coles did not present evidence as to the racial or ethnic make-up of all persons working for Mr. Jones during this period. Based on the evidence in the record, it is found as a fact that blacks were not disproportionately disciplined by Mr. Jones. Mr. Coles was the recipient of many counseling sessions based on poor performance and was the recipient of numerous Disciplinary Action Reports. Mr. Coles received a Disciplinary Action report on February 13, 2004, for failing to hold a patient's leg during presurgery preparation, after having been properly instructed to do so. Mr. Coles received a Disciplinary Action Report on February 3, 2004, in the nature of a written warning, for failing to take personal responsibility and failing to support other employees. This involved his failure to provide a suitable wheelchair for a patient. Mr. Coles received a Disciplinary Action Report in the nature of a formal counseling on February 17, 2003, for failure to follow proper grievance procedures. On March 23, 2004, Mr. Coles received a Disciplinary Action Report in the form of a formal counseling due to a number of incidents over several weeks preceding March 23, 2004. The counseling addressed two incidents based on complaints by Nurse Angie Lee dated January 16, 2004, and February 26, 2004. Nurse Lee complained in the first incident that Mr. Coles refused to take specimens to the laboratory as it was his duty to do. The second complaint addressed an encounter in which Mr. Coles raised his voice and made threatening gestures toward her. This occurred while Nurse Lee was pregnant and she feared for the safety of her child who was scheduled to be delivered by C-section shortly after the incident. She was sufficiently unnerved by this encounter that she asked Mr. Jones not to schedule Mr. Coles to work in the operating room on the day she was to deliver. Another complaint addressed at the counseling session of March 23, 2004, was filed by Nurse Guthrie who cited Mr. Coles for failing to pick up trash, and failing to sweep, prior to departing his work site, contrary to the instructions properly given to him. On April 5, 2004, Mr. Coles received a Disciplinary Action Report in the nature of a written warning addressing his rude behavior and his failure to appear at his work-site on March 22, 2004. He was informed that if further incidences occurred that additional administrative action would ensue, up to and including discharge. On April 5, 2004, Mr. Coles was also presented with a "performance plan." The performance plan cited a written warning and four formal counseling sessions dating from June 12, 2002, and the written warning received on the same day. He was given a 90-day probationary period in which to accomplish specific goals. He was instructed to adhere to the Service Standards, Core Commitments, and Core Values of Sacred Heart, which are embodied in "The Core Commitments," which apply to, and are provided to, all Sacred Heart employees, and which were specifically provided to Mr. Coles. The performance plan also required Mr. Coles to adhere to the Mutual Respect Policy promulgated by Sacred Heart, which specifically forbids retaliatory conduct toward other employees. The performance plan further required Mr. Coles to carry and respond to his pager, and to adhere to the Time and Attendance Policy, and the Call-in Policy. He was required to read again the policies corresponding with the performance plan and was informed that he would be evaluated on the basis of his success in meeting the goals. On May 7, 2004, Mr. Coles received a Disciplinary Action Report which resulted in his suspension. The basis for the Disciplinary Action Report was a verbal threat to harm Mr. Jones. After further investigation, Mr. Coles was terminated. Under the circumstances, the termination was appropriate. Mr. Coles was not terminated as a result of discrimination. He was terminated because he would not or could not adhere to the Sacred Heart policies applicable to employees.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 12th day of October, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert K. Coles 5805 Saint Elmo Street Pensacola, Florida 32503 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, John W. Moore, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as an independent contractor providing services to developmentally disabled persons. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on November 25, 1998, a DCFS committee denied the request. Petitioner is now barred from working in a position of special trust because of two disqualifying offenses. The first offense occurred on November 16, 1994, when Petitioner was arrested for possession of a controlled substance (cocaine), a felony, and possession of drug paraphernalia, a misdemeanor. On October 15, 1995, he entered a plea of nolo contendere. Under a pre-trial intervention program, he was placed on eighteen months probation, required to undergo random drug testing, and required to perform twenty-five hours of community service. The second offense occurred on November 25, 1995, when Petitioner, who was still on probation, was arrested for possession of a controlled substance (cocaine), a felony offense, and resisting arrest without violence, a misdemeanor. On January 18, 1996, he pled "no contest" to both offenses. Adjudication of guilt was withheld, and Petitioner was placed on two years community control to be followed by two years probation. He has successfully completed the community control phase of his sentence and will remain on probation for another nine months. From August 1996 until August 1997, Petitioner worked in Bay County for an independent support coordinator, Lorraine Bruce, who provided services for DCFS clients under a contract. He was forced to resign when a background screening disclosed the disqualifying offenses. While working for Bruce, Petitioner provided a variety of services to four developmentally disabled clients. Bruce considered Petitioner to be an outstanding employee and will quickly rehire him if an exemption is granted. Petitioner readily acknowledged his prior arrests and that his use of drugs was foolish and immature. He has completed around 215 hours of community service and a drug abuse course, and he has not used any drugs since 1995. As noted above, since his last arrest, Petitioner worked with mentally retarded clients for a year until he was disqualified. He now works in a restaurant. Petitioner enjoys working with developmentally disabled persons, and he desires an exemption so that he may be recertified by DCFS. He is heavily involved in church activities, and his pastor confirmed that Petitioner has contributed many hours to his church and community. In fact, Petitioner has been entrusted by the pastor with a set of church keys since he performs volunteer work at the church almost daily. Given the foregoing considerations, it is found that there is sufficient evidence of rehabilitation since Petitioner's last arrest in 1995, and that he will not present a danger to his clients if the request is approved. His request for an exemption should be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 March, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Moore 1410 New York Avenue Lynn Haven, Florida 32344 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of race and by retaliating against her, in violation of the Florida Civil Rights Act of 1992, as amended, Sections 760.10 et seq., Florida Statutes (2006).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Outreach Center is an organization serving the homeless in Broward County, Florida. It is associated with the Miami Rescue Mission and operates two centers in Broward County, one in Pompano Beach, Florida, and one in Hollywood, Florida. It provides shelter, emergency services, and comprehensive services to its clients, and receives its funding from private donations, in-kind gifts, contracts with governmental entities, and partnerships with local communities. At the times pertinent to this proceeding, the staff of Outreach Center's Hollywood center was multi-ethnic; approximately 50 percent of its employees were African-American, including two supervisors, and the rest of the staff consisted of Hispanics, whites and persons of other ethnic origins. At the times material to this proceeding, Ronald Brummitt was the Executive Director of the Miami Rescue Mission/Broward Outreach Center; Scott Hall was the Director of the Hollywood center of the Outreach Center and reported to Mr. Brummitt; and Martha Ayerdis was the Director of Human Relations for the Outreach Center. Mr. Brummitt and Mr. Hall are both white men. Ms. Chester, who is an African-American woman, began working for the Outreach Center in early 2005 as a case manager in its Pompano Beach center. During part of the time she worked in the Pompano Beach center, Mr. Hall was the social services supervisor and supervised Ms. Chester. Mr. Hall and Ms. Chester had a very good working relationship when they worked together in Pompano Beach. Later in 2005, Ms. Chester transferred to the Hollywood, Florida, center of the Outreach Center. Prior to her transfer, Mr. Hall became the Director of the Outreach Center's Hollywood center. Francesca Fraser, an African-American woman whom Ms. Chester had known when they both worked as case managers in the Pompano Beach center, was the social services supervisor at the Hollywood center when Ms. Chester began working there. Ms. Fraser began working with the Outreach Center in Pompano Beach in 2004; she was offered the social services supervisor position in Hollywood about a year and a half later. As the social services supervisor, Ms. Fraser supervised Ms. Chester. Mr. Hall and Ms. Fraser both thought very highly of Ms. Chester, and they recommended to Mr. Brummitt that Ms. Chester be promoted to lead case manager. Mr. Brummitt, who, as the Executive Director of the Outreach Center, had the power to hire, fire, and promote employees, approved Ms. Chester's promotion. The social services supervisor was a key person at the Outreach Center because, in addition to managing the case managers, the social services supervisor was responsible for ensuring that the required data were input into the Outreach Center's client-tracking database system and for extracting this data and preparing the monthly reports that were sent to the Miami Rescue Mission, the Outreach Center's parent organization. The data in the monthly reports were relied on to prepare the quarterly reports and the annual reports. During the times pertinent to these proceedings, Mr. Hall prepared the quarterly and annual reports, which were provided to Broward County as a condition of the Outreach Center's receiving funding from the county. Ms. Fraser liked her work at the Hollywood center of the Outreach Center. She felt, however, that her interaction with management, specifically, with Mr. Hall, was stressful and uncomfortable and became increasingly so. For Mr. Hall's part, he felt that, any time he questioned Ms. Fraser or tried to instruct her, she became defensive and gave him the impression that she felt insulted. Mr. Hall considered Ms. Fraser a very capable person, but their working relationship began to deteriorate because of the lack of communication between them. After a time, Ms. Fraser decided that she had no alternative but to resign her position with the Outreach Center. She was experiencing a great deal of stress as a result of her dissatisfaction with her working relationship with Mr. Hall, and she became ill. Ms. Fraser missed a great deal of work because of her illness, and, during Ms. Fraser's absences, Ms. Chester stepped in and helped Mr. Hall complete Ms. Fraser's work. Ms. Chester was a tremendous help to Mr. Hall during this time. After Ms. Fraser resigned, Ms. Chester acted as the de facto social services supervisor, and Mr. Hall worked with Ms. Chester on the client-tracking database and worked with her to complete the monthly report due June 30, 2006. Ms. Chester was promoted to social services supervisor at the Hollywood center effective July 1, 2006. Mr. Hall assumed that, when Ms. Chester was promoted to lead case manager, Ms. Fraser taught her how to use the client-tracking database system and how to supervise the case managers and had requested her assistance in the preparation of reports. He, therefore, did not provide Ms. Chester with any formal training with regard to the duties of the social services supervisor. He was, however, available to answer questions and work with her whenever she needed assistance, and he met with her regularly regarding various matters. Ms. Fraser left behind a great deal of unfinished work when she resigned, and Ms. Chester had a lot to do to get the work current. At the same time that she was trying to learn the job of social services supervisor, Ms. Chester was also handling the cases that she had when she was the lead case manager, and she had also advised Mr. Hall of her intention to take college courses to further her education. Mr. Hall was concerned that Ms. Chester was overwhelmed, and he urged her to transfer her case files to one of the case managers and to concentrate on her administrative and supervisory responsibilities. In Ms. Chester's opinion, the case managers under her supervision had heavy caseloads, and Ms. Chester continued to work with clients. When Ms. Chester was promoted to social services supervisor on July 1, 2006, Barbara Law was an intake case manager and was under the supervision of Ms. Chester. Ms. Law was promoted to resident services supervisor in August 2006. Ms. Chester believed that Ms. Law was given preferential treatment by Mr. Hall. For example, Ms. Law brought her daughter into the office on occasion, when she had an emergency; on one occasion, the lead family case manager, who was under Ms. Chester's supervision, had to tell Ms. Law's daughter not to run around the building with the children of clients. Ms. Chester believed that Mr. Hall was showing favoritism to Ms. Law by permitting her to bring her child to the office, but this was not a privilege extended only to Ms. Law. Other employees were routinely allowed to bring their children to the office. Ms. Chester felt that Ms. Law's family concerns were accommodated by Mr. Hall by allowing Ms. Law to bring her daughter to the office during work hours, but that Mr. Hall did not accommodate her family concerns. Ms. Chester referred to an incident that occurred during the first week of December 2006. Ms. Chester telephoned Mr. Hall on Monday, December 3, 2006, to advise him that she had a family medical emergency and would not be at work that day. Ms. Chester told Mr. Hall that she would not take leave because she intended to make up the time by working on the following Saturday. Mr. Hall told Ms. Chester that this was fine. On Saturday, Mr. Hall received a call from one of the case managers asking for help with an emergency. Mr. Hall told the case manager to report the problem to Ms. Chester, but he was told that Ms. Chester was not at the Outreach Center. Mr. Hall telephoned Ms. Chester on Sunday to ask if she reported to work on Saturday, and she confirmed that she had not but gave no explanation. When she submitted her timesheet for the week, she reported that she had worked a 40- hour week. Mr. Hall wrote this incident up in a Disciplinary Action Report dated December 14, 2006, which was later amended on December 21, 2006. On another occasion, when Mr. Hall was out of the office on vacation, Ms. Law told the case managers, including those who were supervised by Ms. Chester, to report any problems to Ms. Law in Mr. Hall's absence. Because of this instruction, case managers who were under Ms. Chester's supervision reported to Ms. Law rather than to Ms. Chester. In the opinion of one case manager, Ms. Law did well while she was in charge. In addition to Ms. Chester's specific concerns related to Ms. Law, related above, Ms. Chester had ongoing concerns related to Ms. Law job performance. Before Ms. Law was promoted to residential services supervisor, Ms. Chester was her supervisor. Ms. Chester complained to Mr. Hall about what she perceived as Ms. Law's insubordination, but, in her opinion, Mr. Hall did not take her concerns seriously. Ms. Chester also felt that Ms. Law was given preferential treatment because Ms. Law received Mr. Hall's approval to place two families in one accommodation, while she was criticized by Mr. Hall for placing two families together. As a general rule, placing two families in the same accommodations was a serious breach of the Outreach Center's rules. Mr. Hall approved Ms. Law's placing a new mother and her infant in accommodations with a family that the new mother had grown close to, so the family could help the new mother with her infant. In an e-mail sent from Mr. Hall to Ms. Chester on August 30, 2006, Mr. Hall asked Ms. Chester to meet with him to discuss complaints he had received from clients that there were substantial delays in meeting their case managers. Mr. Hall considered this a very serious matter that was causing discontent among the Outreach Center's clients, and he approached Ms. Chester about the problem because she was the social services supervisor. In an undated response to Mr. Hall's e-mail, Ms. Chester stated that she was getting complaints that Ms. Law was not meeting the needs of her clients, apparently because Ms. Law had been involved in training other employees. She expressed confidence that, once Ms. Law resumed her regular case management duties, the situation would be resolved, but she alluded to divisions among the Outreach Center's staff. Ms. Chester was very concerned that Ms. Law was not serving her clients appropriately, and Ms. Chester felt obligated to work with Ms. Law's clients. Ms. Chester was, therefore, trying to manage a caseload at the same time she had administrative and supervisory responsibilities. This caused a great deal of stress for Ms. Chester, and she was seen crying in the office on several occasions by one of the case managers she supervised. On or about September 25, 2008, Mr. Hall, Ms. Chester, and Ms. Law met to discuss the problems that had been identified by Mr. Hall in the August 30, 2006, e-mail. The immediate problem between Ms. Chester and Ms. Law was resolved, and Ms. Law left the meeting. Mr. Hall asked Ms. Chester to remain behind because he wanted to discuss a complaint that he had received about her using profanity in the workplace. One of Ms. Chester's case managers went to another supervisor and complained because the case manager did not want to get in trouble. The supervisor reported the complaint to Mr. Hall. When Mr. Hall told Ms. Chester about the complaint, Ms. Chester denied using profanity. Mr. Hall assured her that this was not a disciplinary matter and that, if she did not use profanity, he should forget about the complaint. Ms. Chester insisted on an investigation and on confronting the person who had lodged the complaint. Eventually, the supervisor who had received the complaint in confidence and reported it to Mr. Hall, a woman named Lolita Suarez, came forward, and Ms. Suarez and Ms. Chester discussed the matter and came to a resolution. On September 26, 2006, however, the day after the meeting, Ms. Chester wrote an e-mail to Mr. Brummitt in which she stated that she considered the complaint a personal attack, made without justification, because she "had concerns with a certain employee," apparently referring to Ms. Law. Ms. Chester described the complaint as "'tit for tat'" behavior, and she described the work environment as one that interfered with her ability to carry out her responsibilities. Ms. Chester further stated that Mr. Hall refused to divulge the name of the person complaining about her use of profanity, and she requested Mr. Brummitt's intervention to "provide clarity with this situation."2 Ms. Chester sent a copy of the e-mail to Mr. Brummitt to Mr. Hall. In an e-mail dated October 16, 2006, Mr. Hall wrote to Ms. Chester that he had just discovered the e-mail to Mr. Brummitt. Mr. Hall stated that the e-mail to Mr. Brummitt was inappropriate because it broke the "chain of command" set out in Section 2.1 of the Employee Handbook and that, if Ms. Chester wanted a meeting with Mr. Brummitt, she was to request it through him, Mr. Hall. Mr. Hall emphasized that Ms. Chester had not been disciplined as a result of the complaint, nor had there been any other consequences. Mr. Hall further stated that Ms. Chester's circumvention of the chain of command created a problem for Ms. Chester and Mr. Hall and that it would be necessary for them to meet to resolve the matter and, possibly, to include Mr. Brummitt. Ms. Chester wanted to meet with Mr. Brummitt to discuss the manner in which Mr. Hall talked to and related to employees. She also wanted to speak with Mr. Brummitt because she had brought problems and issues to Mr. Hall's attention, but, in her opinion, Mr. Hall refused to address the problems or deal with them because, Ms. Chester surmised, he was uncomfortable with the matters she brought to his attention. Ms. Chester wanted Mr. Brummitt to intervene and resolve the growing tension between her and Mr. Hall. Ms. Chester made several requests to meet with Mr. Brummitt on her own. Although Mr. Brummitt did not respond directly to Ms. Chester's requests for a meeting, he talked with her at one point and told her to follow the procedures in the employees manual and go through the system if she had any complaints or concerns. According to the Employee's Manual, an employee was to go first to his or her immediate supervisor to resolve a problem; if the employee was not satisfied with the response of his or her immediate supervisor, the employee was to go to the Human Relations Director, Ms. Ayerdis, and she would discuss the problem and request a meeting with the Executive Director, Mr. Brummitt, if appropriate. By October 2006, Mr. Hall had observed a number of problems with the case management and the team supervised by Ms. Chester. He was also receiving verbal complaints about Ms. Chester from other supervisors. He became concerned and asked Ms. Chester to meet with him to discuss a number of issues. Among other things, Mr. Hall intended to ask Ms. Chester to transfer any cases she was managing at the time and spend her time doing the administrative duties required of the social services supervisor. He believed that Ms. Chester was overwhelmed and experiencing a lot of stress on the job, and he wanted to make it easier for her to perform her managerial and administrative responsibilities. Mr. Hall and Ms. Chester met on or about October 15, 2006. Mr. Hall felt that Ms. Chester had become increasingly defensive whenever he brought any issues to her attention, and, at the October 15, 2006, meeting she become noticeably upset and then somewhat belligerent. As the meeting progressed, Ms. Chester become increasingly belligerent, and Mr. Hall became angry and told Ms. Chester to leave his office. Mr. Hall did not give Ms. Chester any indication that her employment was terminated and took no action to terminate her. Nonetheless, when Mr. Hall told Ms. Chester to leave his office, she left the Outreach Center's office and filed an unemployment compensation claim effective October 15, 2006. Ms. Chester did not report for work on October 16, 2006, but she subsequently continued working, and Mr. Hall was not aware that she had filed an unemployment compensation claim until Ms. Ayerdis told him that she had received notice that the claim had been filed. The claim was denied on November 6, 2006, on the grounds that Ms. Chester was fully employed and not eligible for unemployment benefits. After Ms. Chester's promotion on July 1, 2006, Mr. Hall continued to prepare the quarterly reports, and he trained her to prepare these reports. Ms. Chester's only responsibility with regard to the quarterly reports was to ensure that the required data from client files and the persons- served worksheet was entered into the client-tracking database system so that Mr. Hall could pull this information to include in the quarterly reports. Ms. Chester submitted the July 2006, August 2006, and September 2006 monthly reports on time. Mr. Hall wrote e-mails complimenting her and thanking her for getting the September 2006 in early. Mr. Hall did not check the data and documentation backing-up the July and August reports, but, when he began to prepare the quarterly report that was due on October 15, 2006, he noticed that the data in the client- tracking database system did not match the information Ms. Chester had included in the monthly reports. The monthly report was basically spreadsheet containing the accumulated data that had been entered into the client-tracking database system throughout the month, and the information in the database should have been reflected in each monthly report. The missing data related to intakes, discharges, and referrals to transitional housing, and the discrepancies between the data in the database and the data included in the monthly reports prepared by Ms. Chester were significant. It was very important that the reports submitted to Broward County were accurate because the Outreach Center's funding was dependent on the information included in the reports. Mr. Hall sent Ms. Chester several e-mails on October 16 and 18, 2006, advising Ms. Chester of the missing data and asking that she provide the backup documentation for her monthly reports and account for the discrepancies. Mr. Hall suspected that Ms. Chester was pulling the data for the monthly reports from the client files themselves and that she was not inputting the data into the client-tracking database system. All of the information included in the monthly reports had to go into the database so that reports could be generated from the database, and Ms. Chester had been trained by Mr. Hall on inputting the data into the database. Ms. Chester never responded to the e-mails Mr. Hall sent on October 16 and 18, 2006, and she did not provide him with the backup documentation that he had requested. Ms. Chester's 90-day review of her performance was due on or about October 1, 2006. Because of what he perceived as problems with Ms. Chester's job performance, especially after the September 25, 2006, meeting when he brought up the complaint about her use of profanity, Mr. Hall decided to delay the review for 30 days to allow Ms. Chester additional time to improve her performance. Mr. Hall completed the review, and it was not favorable to Ms. Chester. Mr. Hall rated Ms. Chester below average in a number of categories, including quality of work, quantity of work, dependability, and customer contact. He rated Ms. Chester both below average and average on cooperation, noting that this had improved slightly. Mr. Hall rated Ms. Chester above average in attitude and average in ability to learn new duties. In the narrative portion of the review, Mr. Hall noted Ms. Chester's strengths as building strong and trusting relationships with the case managers she supervises, strong communication skills, and genuine compassion toward the homeless and dedication to helping them. Mr. Hall also observed that Ms. Chester was well-like by some of her coworkers and fellow supervisors. Mr. Hall made the following assessments of the weak points in Ms. Chester's job performance: In the areas of performance and follow-through, Mr. Hall stated that Ms. Chester had difficulties getting along with supervisors of other departments; was "visibly and emotionally very defensive" when concerns were brought to her attention and when she was given constructive criticism and correction of her performance; did not follow through with instructions or respond to e-mails; failed to respond to e-mails sent in October 2006 asking about missing data; failed to provide requested back-up documentation for data included in her monthly reports; despite having been reminded several times, failed to devise a work schedule for case managers so that all shifts during the week were covered; and failed to conduct regular crisis assessment team meetings. In the area of program outcomes, Mr. Hall stated that the data missing from the client-tracking database caused the Outreach Center to fall short of the outcomes required by its contract with the county; that the quarterly satisfaction survey of the Outreach Center's clients reflected the lowest percentage of satisfaction with case management services since the Outreach Center had been open; that, when Ms. Chester was told of the low survey results and asked how it could be improved, she stated that nothing could be done that had not been done already; and that Ms. Chester did not work out solutions for transfer of clients in emergency shelter to transitional shelter or independent living arrangements but offered extension of time to the clients, which had a negative effect on the outcomes required by the county. In the area of interviews, Mr. Hall stated that Ms. Chester was not able to build a solid and professional staff of case managers because she was unable to assess the strengths and weaknesses of persons interviewing for jobs. In Mr. Hall's view, Ms. Chester made decisions based on her emotions rather than on the candidate's qualifications and experience. In the area of decision-making and judgment calls, Mr. Hall stated that some of Ms. Chester's decisions put the Outreach Center and its clients at risk. He specifically noted that Ms. Chester had agreed to allow a single woman client to take another family's children to a medical appointment; had placed two families in one family unit; and had placed a single father with two sons, 16 and 13 years of age, in the women and children's center. Mr. Hall stated that Ms. Chester went outside the chain of command by sending an e-mail to Mr. Brummitt without Mr. Hall's approval and without notifying him, as required by the employee handbook; that she enabled poor performance by the case managers under her supervision; and that her excessive absences had placed the Outreach Center and the case management team in a difficult position. Finally, Mr. Hall stated that he had attempted to help Ms. Chester improve her job performance by meeting with her weekly and sometimes daily to provide instruction on the particulars of her job. He stated, however, that communication between him and Ms. Chester had broken down "on her end" shortly after the meeting in which he had spoken with her about the complaint that she had used profanity in the workplace.3 Mr. Hall arranged to meet with Ms. Chester on November 3, 2006, to discuss the 90-day review. Prior to the meeting, Mr. Hall gave Ms. Chester the review and told her to read it over. He knew she would have problems with the review because of the negative assessment of her performance, and he anticipated that their meeting would be lengthy because there were a great many concerns to discuss. In addition to discussing Ms. Chester's weaknesses, Mr. Hall also expected to discuss the adjustments that could be made to improve her performance and help her move into her administrative role. Ms. Chester did not show up for the meeting with Mr. Hall. Instead, she refused to discuss the review with Mr. Hall and requested a meeting with Mr. Brummitt. The meeting was scheduled for November 7, 2006. In spite of the negative 90-day review he had given Ms. Chester, Mr. Hall considered her an excellent candidate for a supervisor's position even though they no longer had the close working relationship they once shared. Mr. Hall was concerned, however, about Ms. Chester's ability to transition from being a case manager to being a supervisor because she seemed unable to supervise the members of the case management team. In addition, from Mr. Hall's perspective, Ms. Chester was communicating with him less and less frequently, and he found that she was becoming more and more resistant to instruction. Mr. Hall did not doubt Ms. Chester's ability to do the job of social services supervisor, but he took into consideration the fact that Ms. Chester was handling a client caseload and taking classes to further her education at the same time that she was learning to be a social services supervisor. Mr. Hall believed that Ms. Chester was overwhelmed in the position of social services supervisor, and she appeared to be stressed all of the time. Mr. Hall became convinced that Ms. Chester needed to work closely with a supervisor before she could successfully function as a supervisor, and he intended to remove her from the supervisory position for her own benefit and phase her back into that position. Prior to the November 7, 2006, meeting, Mr. Brummitt, Mr. Hall, and Ms. Ayerdis discussed the situation with Ms. Chester. After receiving input from Mr. Hall, Mr. Brummitt concluded that Ms. Chester was a valuable employee that he wanted to retain, and he decided to offer Ms. Chester the choice of remaining in the social services supervisor position or of returning to her former position as lead case manager, but at the same salary she was receiving as social services supervisor. At the meeting held on November 7, 2006, which was attended by Mr. Brummitt, Mr. Hall, and Ms. Ayerdis, Mr. Brummitt made his offer to Ms. Chester. Ms. Chester became upset because she considered the offer to return to her former position of lead case manager to be a demotion and to be disrespectful to her. Ms. Chester also took the offer to return to her former position at the same salary to be an indication that she was being underpaid as a supervisor. Ms. Chester attributed the poor 90-day performance review to retaliation by Mr. Hall for her e-mail and request to meet with Mr. Brummitt in September 2006. In Ms. Chester's view, her performance had been satisfactory and any problems she had were the result of lack of support from Mr. Hall and lack of training. Ms. Chester believed that black supervisors were not given the same level of support, training, and assistance that was given to white supervisors. Ms. Chester rejected Mr. Brummitt's offer to return to her former position as lead case manager, and she chose to remain in the position of social services supervisor and gave Mr. Brummitt and Mr. Hall assurances that she could do the job. Mr. Brummitt warned Ms. Chester that the offer to return to her former position was a one-time offer and that her performance as social services supervisor must improve or she would be terminated from her employment with the Outreach Center. Ms. Chester indicated that she understood. Communication between Mr. Hall and Ms. Chester improved for a few weeks after the November 7, 2006, meeting, but Ms. Chester's job performance did not improve, in Mr. Hall's estimation: Ms. Chester failed to register the case managers under her supervision for a scheduled training session. She nonetheless took them to the training location, where they were turned away and had to return to the Outreach Center. When Ms. Chester turned over her client case files after the November 7, 2006, meeting, Mr. Hall found that there was a great deal of information missing from the files, especially care plans for the clients, which Mr. Hall considered an extremely serious offense that impacted the Outreach Center's ability to serve its clients. On November 14, 2006, Mr. Hall asked Ms. Chester to attend a mandatory meeting regarding referrals to a Broward County agency that assisted the chronically homeless to obtain permanent housing. This was a very important meeting, but Ms. Chester forgot about the meeting and did not attend, with the result that the Outreach Center did not have a representative at the meeting. On November 24, 2006, Mr. Hall wrote an e-mail to Ms. Chester discussing the failure of one of the case managers under her supervision to write case notes and place them in clients' files. This case manager had not prepared any case notes for approximately a year, and Mr. Hall considered this a very serious offense that jeopardized the Outreach Center's county funding. Mr. Hall told Ms. Chester to write a Disciplinary Action Report on this case manager, but she resisted doing so. On December 7, 2006, Mr. Hall wrote an e- mail to Ms. Chester directing her to prepare the report, and she did so on December 8. 2006. She noted, however, that Mr. Hall had not allowed her to write a Disciplinary Action Report on Ms. Law. Ms. Chester was absent on Monday, December 3, 2006, because of a family emergency. As noted above, she advised Mr. Hall that she would work the following Saturday, but she did not do so. At a Crisis Assessment Team meeting led by Ms. Chester on or about December 6, 2006, Roberta Geist, the Outreach Center's lead therapist/counselor, was discussing the repeated failure of the case management team, which was multi-ethnic, to follow procedures with regard to clients who had relapsed. Ms. Geist was frustrated at the lack of compliance with procedures and, intending to address the entire case management team, she referred to "you people." Paulette Williams Shepherd, a case manager who had been hired by Ms. Chester in mid- November 2006, took offense, construing the comment as referring to the African-Americans who were attending the meeting, and she immediately left the meeting. Persons who attended the meeting reported to Mr. Hall that Ms. Chester became irate and also left the meeting, although she returned a few minutes later, acting as though nothing had happened. Ms. Chester contacted the Human Relations Department about the incident, and she also told Mr. Hall that she intended to file a formal complaint against Ms. Geist with her supervisor. In a Disciplinary Action Report dated December 14, 2006, Mr. Hall charged Ms. Chester with violations related to attendance, carelessness, and work quality. In the body of the report, he discussed three specific offenses: Ms. Chester's failure to include the proper documentation in the case files she had handled prior to November 7, 2006; her failure to attend the November 27, 2006, meeting; and her failure to report for work on Saturday, December 8, 2006, as promised, and to complete documentation for staff files for an audit conducted Monday, December 10, 2006.4 Mr. Hall wrote the Disciplinary Action Report in lieu of writing a review of Ms. Chester's performance subsequent to the her 90-day performance review, and he recommended that Ms. Chester be demoted to case manager effective December 18, 2006, or that she be terminated if she rejected the demotion. A meeting was arranged for December 18, 2006, with Mr. Hall, Ms. Ayerdis, and Ms. Chester. Mr. Hall anticipated that they would discuss the contents of the Disciplinary Action Report, including performance issues; Ms. Chester's falsification of her timesheet for the week of December 2, 2006; and Ms. Geist's remark at the December 6, 2006, Crisis Assessment Team meeting, as well as Ms. Chester's response to the remark. The meeting lasted less than five minutes, however. Mr. Hall began the meeting by asking Ms. Chester about the December 2, 2006, timesheet; Ms. Chester immediately accused Mr. Hall of being a racist and demanded an investigation into his discriminatory conduct towards her. Ms. Ayerdis agreed that she would conduct an investigation into Ms. Chester's allegation of discrimination against Mr. Hall. She told Ms. Chester to take a leave of absence with pay during the investigation. Ms. Ayerdis then closed the meeting. Ms. Ayerdis scheduled a meeting with Ms. Chester on December 21, 2006. She had completed the investigation into Ms. Chester's allegation of racism and found no evidence that Mr. Hall had discriminated against Ms. Chester on the basis of her race. A revised Disciplinary Action Report was prepared and dated December 21, 2006, in which Mr. Hall recommended that Ms. Chester's employment be terminated effective December 21, 2006. Mr. Hall based his recommendation that Ms. Chester be terminated on her failure to perform up to expectations and her failure to correct the performance deficiencies identified in the 90-day performance review. Mr. Brummitt, who had the ultimate authority to terminate employees at the Outreach Center, and Ms. Ayerdis concurred with Mr. Hall's recommendation, and, at the December 21, 2006, meeting, Ms. Ayerdis advised Ms. Chester that the investigation of Ms. Chester's discrimination claims against Mr. Hall turned up no evidence to support her allegation that he was a racist. Finally, Ms. Ayerdis notified Ms. Chester that her employment with the Outreach Center was terminated, effective immediately. Mr. Brummitt was aware that Ms. Chester and Ms. Ayerdis were meeting on December 21, 2006, and that Ms. Ayerdis would advise Ms. Chester of her termination at the meeting. It was close to Christmas, when the Outreach Center's employees received their bonuses, and Mr. Brummitt was concerned about Ms. Chester's not receiving her bonus. Mr. Brummitt decided that it was not fair to deny Ms. Chester the bonus, and he telephoned Ms. Ayerdis several times during her meeting with Ms. Chester to tell Ms. Ayerdis that Ms. Chester would receive the bonus and to confirm the amount of the bonus. Summary of factual findings The evidence presented by Ms. Chester is not sufficient to establish that she was the subject of unlawful discrimination or that she was terminated in retaliation for protected conduct. It is uncontroverted that Ms. Chester is a member of a protected class of persons, but she did not present sufficient persuasive evidence to establish that any similarly- situated employee of the Outreach Center was treated more favorably in any respect than Ms. Chester was treated. Ms. Chester failed to produce any evidence establishing that Ms. Law received more training or support from Mr. Hall than he provided Ms. Chester, nor does the evidence establish that Mr. Hall failed to discipline Ms. Law for the same or similar conduct for which Ms. Chester was disciplined. Rather, the evidence affirmatively establishes that Ms. Chester was terminated because of her unsatisfactory performance of the responsibilities of a social services supervisor. Ms. Chester likewise failed to present sufficient evidence to establish that she was discriminated against in the form of a hostile work environment. Although she alleged that she was subjected to constant harassment because of her race, that she was intimidated by the work environment at the Outreach Center, and that she was ridiculed for problems that she did not create, Ms. Chester failed to present any persuasive evidence to support these allegations. In addition, Ms. Chester did not present sufficient persuasive evidence to establish that she was terminated in retaliation for engaging in protected conduct. Ms. Chester did not present any evidence that she filed a discrimination complaint on account of Ms. Geist's reference to "you people," either with the Human Relations Department or with Ms. Geist's supervisor. Furthermore, the evidence affirmatively establishes that Mr. Brummitt warned Ms. Chester on November 7, 2006, when she refused to accept his offer to return to her position as lead case management, that she would be terminated if her job performance did not improve, and the proximity in time of her discrimination complaint against Mr. Hall and her termination is not sufficient to establish that her termination was in retaliation for the complaint. Ms. Chester likewise failed to present any evidence beyond her conclusory statements to support her allegations that her difficulties with Mr. Hall arose as a result of her attempts to meet with Mr. Brummitt and that she was ultimately terminated in retaliation for telling the truth about what she considered bad working conditions and "things that were not right."5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Peggy Chester against the Broward Outreach Center/Miami Rescue Mission be dismissed. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 31st day of March, 2009.
