The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations (Commission) more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact The following facts, which are assumed to be true for purposes of considering Respondent’s motion to dismiss,” are contained in the Petition and the related documents referred by the Commission to the Division: 1. On or about October 1, 1999, Petitioner filed a charge of discrimination with the Commission. 2. The charge alleged that during the course of her employment with Respondent, Petitioner was "subject to a racially and sexually hostile work environment" and that she was “subject to disparate treatment in terms of scheduling, job assignments, work conditions, promotions and disciplinary actions." The charge further alleged retaliation by Respondent as a result of Petitioner's complaints regarding the discriminatory treatment. 3. The Commission staff investigated the charge, and based upon that investigation, the Executive Director of the Commission issued a "no cause" determination on August 27, 2002. On that same date, notice of the determination was sent to Petitioner by U.S. Mail. 4. The notice stated in relevant part: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied) . 5. Included with the notice was a blank Petition for Relief form, which Petitioner completed and sent to the Commission. 6. The Petition, like the charge of discrimination, alleges that Petitioner “was subject to a racially and sexually hostile work environment." 7. The Commission received the Petition on October 16, 2002, as shown by the date-stamp on the Petition. 8. There are no allegations in the Petition which explain the delay between the Commission's determination and the filing of the Petition. However, at the telephonic hearing on the motion to dismiss, counsel for Petitioner stated that the late filing of the Petition resulted from Petitioner’s mistaken assumption that weekends and holidays were not to be included when calculating the 35-day deadline for filing the Petition. 9. There is nothing to suggest that either the Commission or Respondent contributed in any way to Petitioner’s mistaken assumption regarding the calculation of the 35-day deadline. 10. Petitioner was apparently not represented by counsel at the time she filed the Petition.
Conclusions For Petitioner: Joseph P. Hoffman, Esquire 1415 Dean Street, Suite 110 Fort Myers, Florida 33901 For Respondent: Gordon R. Leech, Esquire Wiederhold, Moses & Rubin Brandywine Center II, Suite 240 560 Village Boulevard West Palm Beach, Florida 33409
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. _ | ; DONE AND ENTERED this / | day of April, 2003, in Tallahassee, Leon County, Florida. a, Ee To fod wore & T KENT WETH@RELL, Administrative Law guage Division of Administrative Hearings The DeSoto Building 1220 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 Pt Administrative Hearings this [ st day of April, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and comect gepy of this Final Order was served on the below-named persons by the method designated on this {30-day of Fora , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia R. Caufman, Field Office Manager Revenue Management Unit Areas 5 and 6 (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Tracy George, Chief Appellate Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Christina Mesa, Esquire MESA Law, P.A. P.O. Box 10207 Tampa, Florida 33679-0207 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of a handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female. She was employed by Respondent beginning in mid-August 2013. Her employment with Respondent ended in the first quarter of 2014. Respondent is an active limited liability company established and doing business pursuant to Florida law. Respondent provides case management services to Medicare and Medicaid recipients. Christine Cauffield, appearing on behalf of Respondent, is Respondent’s founder and CEO. Cauffield testified that Respondent never had more than 14 employees. The undersigned finds Cauffield’s testimony credible. Scott Eller is the founder and CEO of Community Assisted and Supported Living, Inc., a/k/a Renaissance Manor (CASL). CASL never employed Petitioner, and CASL did not share employees with Respondent. The two entities had a business agreement, but the companies are separate and independent of each other. At the final hearing, Respondent presented a Florida Department of Revenue Employer’s Quarterly Report covering each quarterly reporting period commencing on March 31, 2012, and ending September 30, 2014. Each report shows that Respondent employed fewer than 15 employees for each quarter covered by the report. These reports, supported by Cauffield’s testimony, constitute competent substantial evidence that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2012, the year preceding the alleged discrimination; that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013; and that Respondent employed fewer than 15 employees for each working day in each of the first 40 calendar weeks in 2014.3/ Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
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 dismissing Petitioner’s Request for Administrative Hearing. DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of April, 2015.
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Cavalier is in the business of providing various types of telephone services including landline communications, DSL, and Internet TV. They have as many as 150 employees in the Pensacola area and have offices in other locations. Cavalier acquired Talk America, Inc., a predecessor corporation, on April 20, 2006. Ms. Smith began working for Cavalier as a sales representative in December of 2006. As a sales representative for Cavalier, Ms. Smith called potential customers and attempted to sell them services and products provided by Cavalier. She was very successful at this work and was considered to be an excellent employee. Her sales were high, and she was awarded bonuses. On April 19, 2007, Ms. Smith suffered a mini-stroke and was absent from her work until May 2, 2007. At that time, she assumed that she had recovered and reported for work. Her supervisor, Floor Manager Cassandra Pressley, and fellow employees were happy to see her return. To celebrate her return, Ms. Pressley and other employees contributed money that was used to buy flowers for Ms. Smith. As the day progressed, Ms. Pressley noticed Ms. Smith slumped over in her chair and was concerned. Ms. Pressley offered her extra breaks, but Ms. Smith refused her entreaties. Eventually, Ms. Smith became clearly unwell, and with Ms. Pressley's encouragement, she departed with a co-worker who followed her home. On May 2, 2007, Ms. Smith learned from her doctor that she would have to take, or continue with, medical leave. When Ms. Pressley became aware of this, she caused Ms. Smith to communicate with Suzanne Altare, Cavalier's director of human relations for the southeast area. Ms. Altare explained Cavalier's company leave policy. Ms. Altare informed Ms. Smith that she was ineligible for leave pursuant to the Family Medical Leave Act because she had been employed with the company for less than a year. Nevertheless, Ms. Altare told Ms. Smith that she could have eight weeks of unpaid discretionary leave. This leave became effective May 2, 2007. Ms. Altare's actions complied with Cavalier's Employee Handbook. The Employee Handbook requires equal treatment of all employees. Subsequent to May 2, 2007, Ms. Pressley and Ms. Altare both checked in with Ms. Smith by telephone on more than one occasion to see how she was doing and inquired if her doctor was going to provide her with a release so that she might return to work at the end of the eight-week leave. On or about July 5, 2007, in the ninth week of her absence, both Ms. Pressley and Ms. Altare communicated with Ms. Smith by telephone. Ms. Smith informed them that her doctor had not released her for return to employment. Since she could not provide an estimated time of return, she was terminated. Because Ms. Smith was an especially valued employee, Ms. Altare informed her that she would process her termination as voluntary so that when she was physically able, she could return to work at Cavalier. This coincided with what Cavalier had done with other employees who had to stop working temporarily due to an illness. At least one of those had in fact returned upon receiving a release from her doctor. No evidence was adduced by any witness that Ms. Smith either complained of discrimination or requested an accommodation. In September 2007, Ms. Pressley was asked by a person identified as Ms. Smith's husband to help Ms. Smith at a check- cashing facility that was located close to the Cavalier workplace. Ms. Pressley went with him to the check-cashing facility. Ms. Smith approached Ms. Pressley and hugged her. Ms. Pressley inquired as to when Ms. Smith would return. She told Ms. Pressley that she had not been released by her doctor. Ms. Smith testified that she received "disability payments" until December 16, 2007, when her doctor informed her that she could go back to work. Ms. Smith testified, "I figured they would rehire me, anyway, because of my good sales, yes, sir." However, at least up until the time of the hearing, Ms. Smith had not asked to return to her job.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Sarah L. Smith. DONE AND ENTERED this 28th day of July, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lori Y. Baggett, Esquire Carlton Fields 4221 West Bay Scout Boulevard Post Office Box 3239 Tampa, Florida 33607 Sharon Glover, Esquire 2134 West Laburnum Richmond, Virginia 23227 Sarah L. Smith 513 North Reus Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
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 which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue Whether Respondent, City of Apopka, Florida, was guilty of an unlawful employment practice against Petitioner, Scott A. Roberts, according to the Florida Civil Rights Act of 1992, as amended, based on his "disability"; and whether or not he received "disparate treatment."
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a 47-year-old Caucasian male, who, in November 2004, retired from Respondent's Fire Department as a engineer-paramedic as being permanently and totally disabled. Respondent is a municipality in Orange County, Florida. After Petitioner suffered a job-related injury that resulted in an anterior disc excision and fusion, C5-C6 and C6-C7, he elected to pursue disability retirement. In furtherance of his claim of total disability, he was examined by three physicians, Drs. Portnoy, Rojas, and Goll. Drs. Portnoy and Rojas determined that Petitioner had medical limitations that disqualified him from employment as a firefighter. Dr. Goll, prior to Petitioner's decision to proceed with a disability pension, had opined that he was fit for duty without limitations. Dr. Goll had the same opinion in January 2009. In 2009, Petitioner sought re-employment with Respondent. Incidental to his effort to be re-employed, he had an additional examination by Dr. Portnoy. Dr. Portnoy examines "thousands" of firefighters for Central Florida municipalities and usually conducts examinations for Respondent. Based on Dr. Portnoy's 2009 examination of Petitioner, Dr. Portnoy determined that Petitioner "was not qualified to be a firefighter for the City of Apopka." The National Fire Protection Association Standard 1582 ("NFPSA 1582") is referenced in Subsection 633.34(5), Florida Statutes, dealing with physical qualifications of a firefighter. While not required by statute, this standard is relied on by physicians conducting qualifying examinations. Petitioner's surgery is a basis for disqualification under NFPSA 1582. Respondent accepted Dr. Portnoy's opinion and did not re-employ Petitioner based on that opinion. Kevin Kwader, offered by Petitioner as an individual who received disparate treatment, apparently had cervical surgery; however, it is unclear whether the surgery was as comprehensive as Petitioner's. Mr. Kwader was returned to work by the surgeon who performed the surgery with "no restrictions." He was never evaluated by the physician conducting annual physical examinations for Respondent as "not fit for duty." Petitioner did not seek accommodation for a disability; in fact, he indicated, specifically, that he was not seeking any accommodation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, City of Apopka, Florida. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of April, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Moore, Esquire Moore, Peterson & Zeitler, P.A. Post Office Box 536636 Orlando, Florida 32853-6636 Frank Kruppenbacher, Esquire City of Apopka 120 East Main Street Apopka, Florida 32703 Scott Roberts 2839 West Fairbanks Avenue Winter Park, Florida 32789
The Issue Whether respondent discharged petitioner on account of his national origin? Whether respondent refused to rehire petitioner on account of his national origin and/or because he filed a complaint alleging discrimination?
Findings Of Fact Born in Uvalde, Texas, petitioner Nicasio Guadalupe Ramos, 42 years old at the time of the hearing, is an American citizen of Hispanic or Mexican race, ancestry, heritage and national origin, who, since 1971, has lived in Defuniak Springs, county seat of Walton County, Florida. Walton County's written personnel policies refer to a "PERSONNEL MANAGEMENT DEPARTMENT" and to a "personnel department . . . under the direction . . . of the personnel director," Petitioner's Exhibit No. 1, but other County employees or county commissioners themselves effectively decide before the Commission officially hires and fires. Responsibility is diffuse. E.g., T.284, 309. Hard Worker Mr. Ramos started work at the Walton County landfill on February 2, 1988, at $3.35 an hour. At first he spent most of his time picking up stray paper, opening the gate for garbage trucks, and "tripping" trailers to unload the garbage. Like other landfill employees, Mr. Ramos worked more or less steadily while the landfill supervisor, Clinton Earl "Frog" Ward was at the landfill. After three or four months, Mr. Ward, Clarence Johnson and John "Big John" Curry began teaching petitioner to use heavy equipment including the excavator or "pan," the "chipper" and the "dozer" ("how to work the blade, how to spread the dirt.") T.237. According to a co-worker, Mr. Ramos performed "different jobs like all the rest of us." T.31. When the sign maker quit, Mr. Ramos was assigned that job. If "somebody was missing on the dump truck or the garbage boxes," (T.240) he filled in there. He never turned down requests to work as a night guard, requests that sometimes came only near the end of a full day's work. He once operated the excavator every day for two successive work weeks. On September 16, 1988, he was promoted to "Landfill Equipment Operator." Petitioner's Exhibit No. 11. He became a "permanent" instead of a "temporary" employee, and his wages increased to $5.15. T.240. A cost of living increase in the fall of 1988 raised his wages to $5.35 an hour. T.258. Unfriendly Overseer With one exception, Mr. Ramos got along well with his fellow workers, none of whom was Hispanic. "Nick was one of the boys." T.44. The exception was James Ellis, the assistant landfill supervisor who had moved to Walton County from Lake Placid, Florida. Mr. Ellis once expressed the opinion that "the only thing [Mexicans are] good for is to knock their heads [off]." T.255, 280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96. A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74. Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/ Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative. If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86. At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251. Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work. Reduction In Force In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers. Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . . . [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220. They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written: Clarence Hobbs Harold Daughtry Earl Robinson NO COMPLAINT Earl Griggs ON THESE MEN John Mann KEEP THESE MEN Dewey Collinsworth Nick Ramos E.B. Phillips Billy Reynolds Clarence Hobbs truck driver Harold Daughtry operator Earl Robinson operator Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator Nick Ramos operator John Curry truck driver or Lee S. Campbell I need to keep 8 of these men until something changes need men [fo]r now Johnny Peters E.B. Phillips night guards Billy Reynolds I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad. We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to do something and don't look after the equipment at all John Curry - operator a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him Lawton Mathews - garbage truck he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote: Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o] good but he shows up to work good Johnny Peters - Night Guard he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson. Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off. Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244. Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work: Harold Floyd: Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair. John Curry: He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good. Nick Ramos: Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I have tried him on the equipment, and he didn't catch on to it either. His work ability is fair. Lawton Mathews: He is eligible for retirement. He has talked about retiring. His work ability is fair. We may talk to him about cutting back and he may go ahead and retire. Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke. Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991. Not Rehired Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247. Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated: Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening. Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available. Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247. Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163. Complaint Filed Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations. The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination. Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner. Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.) Lost Wages County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 + $5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60. Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251. Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and (d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began. DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992.
