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, Charles W. Leverson, Sr., 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 a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). 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 an unknown date, a DCFS committee denied the request principally on the ground that Petitioner had minimized or denied the gravity of his disqualifying offenses. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on December 16, 1990, and March 24, 1992. On the first date, Petitioner was arrested for the offense of aggrevated battery on his wife, a misdemeanor under Section 784.04, Florida Statutes (1990). On the second date, Petitioner was again arrested for five offenses, including battery on his wife in violation of Section 784.03, Florida Statutes (1991). As to the first charge, on January 26, 1993, Petitioner entered a plea of nolo contendere to the charge of battery and was placed on one year's supervised probation. He was also required to "[s]pend 15 weekends in the county jail." In addition, Petitioner was ordered "not [to] possess or consume any alcohol during the term of [his] probation," and to "[c]ontinue with counseling" (of an undisclosed nature). As to the second charge, Petitioner was found guilty by a jury on July 24, 1992, of committing battery on his wife in violation of Section 784.03, Florida Statutes. A "not guilty" verdict was entered as to the remaining four charges. The record does not indicate the sentence, if any, that he received for this offense. Petitioner successfully completed all terms of his probation. Since his arrest in March 1992, he has not consumed any alcoholic beverages. This is an important consideration since both disqualifying offenses occurred when he was intoxicated. Petitioner began working at FSH on September 26, 1979. He was first employed as a support service aide but was eventually promoted to the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Because of a background screening which occurred in 1997, Petitioner's disqualifying offenses were discovered, and he was forced to resign effective February 12, 1998. He has requested an exemption so that he can return to his employment. Since being forced to resign some four months ago, he has not been employed. The two disqualifying offenses involve battery on Petitioner's long-time wife, Shirler. In both cases, she suffered injuries serious enough to require treatment at a local hospital. Shirler says, however, that Petitioner has "changed" since his 1992 arrest, and he no longer drinks, is communicative with her and the three children, and is a good father. Petitioner attends church, is a member of a lodge in Quincy, Florida, and has a much better attitude since he stopped drinking. He has received good work evaluations during his most recent years of employment at FSH. Former co-workers and supervisors attested to the fact that Petitioner has good rapport with his co-workers and residents, and he performs his stressful job with a "cheerful" and "pleasant" attitude. He was also described as one of the "better" employees in the forensic unit. In March 1987, or more than eleven years ago, Petitioner received a five-day suspension because of an altercation with an inmate in the FSH forensic section laundry room. The suspension was meted out after Petitioner became involved in an argument with an inmate and drew an opened knive in a threatening fashion. Although Petitioner denied that the blade was exposed, testimony by a co-worker established that it was exposed in a threatening fashion. The altercation was resolved, however, before any violence occurred. In mitigation, it was established that Petitioner's possession of a knive in the laundry room was not unlawful since it was necessary for him to use a knive to open the sealed buckets of detergents. On October 13, 1993, Petitioner received a written reprimand for "Abusive and/or Threatening Language." On that occasion, Petitioner was instructed by his supervisor to help fold some laundry in the laundry room. Petitioner replied that he would not and told him "to get off my fucking back." Petitioner also pointed his fist at the supervisor in a threatening manner and "threatened to kick his butt." On June 27, 1994, Petitioner was suspended for fifteen work days effective July 8, 1994, for using threatening and/or abusive language towards a supervisor. This disciplinary action was taken after Petitioner had again refused to comply with instructions by his supervisor. On that occasion, he became "real mad," called her a "motherfucker," shook his fist at her, and threatened to "get her." Although the supervisor stood her ground against Petitioner, she was "afraid" for her safety. Petitioner was less than candid in describing the incidents which led to him receiving disciplinary action by his employer in 1987, 1993, and 1994. He has, however, expressed remorse for striking his wife in 1990 and 1992, and he regrets the embarrassment he caused his wife and children. For the last four years, Petitioner has had a blemish-free record at FSH, including good evaluations from his supervisors and a reputation as one of the "better" employees in his section. Given these considerations, it is found that Petitioner has sufficiently rehabilitated himself since the disqualifying incidents, and that he will pose no threat to the FSH clients and inmates.
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 4th day of June, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998. 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, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10158 filed by North Florida Regional Medical Center, Inc. (“NFRMC”). 1. NFRMC filed a CON application which sought the establishment of a 24-bed comprehensive medical rehabilitation unit within its hospital located in Alachua County, Florida, Service District 3. The Agency denied NFRMC’s CON application 10158. ; 1 Filed November 4, 2013 11:11 AM Division of Administrative Hearings 2. NFRMC filed a petition for formal hearing challenging the Agency’s denial of CON application number 10158. 3. Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital, filed a petition for formal hearing in support of the Agency’s denial of NFRMC’s CON application 10158. 4. NFERMC has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing Files and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of NFRMC’s CON application 10158 is UPHELD. ORDERED in Tallahassee, Florida on this DD day of Octet. 2013. cbc Peele Elizabeth Dudek, Secretary Agency for Health Care Administration _NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review. which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee 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 proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f "__ day of Nove~ hes _, 2013. Richard J. Shoop, Agency Cler| Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for NFRMC (U.S. Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration {Electronic Mail), F. Philip Blank, Esquire Blank & Meehan, P.A. 204 South Monroe Strect Tallahassee, Florida 32301 Counsel for Shands Rehab Hospital (U.S. Mail) we
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Because of a "gut feeling that something was wrong" when he was not hired, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, filed a complaint alleging that Respondent, Department of Children and Family Services (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took over twenty months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries biologist," "fisheries technician," and "equal opportunity employment counselor." Petitioner then apparently retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record in this case. Although Petitioner says he applied "continuously" for at least fourteen positions with the Department after leaving federal service, only four applications are in issue here. They involve positions 012123, 10081, 60287, and 60288. Position 012123 was a Management Review Specialist in the Department's Tallahassee district office ; position 10081 was an Operations and Management Consultant II at the Northeast Florida State Hospital in Macclenny; position 60287 was an Operations and Management Consultant II in the Department's Daytona Beach district office; and position 60288 was an Operations and Management Consultant II at the Department's central office in Tallahassee. Position 60287 was originally assigned to the Family Safety and Preservation Program in District 12 and required that the applicant have experience in child neglect and foster services. It was first advertised through a Job Opportunity Announcement (JOA) published on December 24, 1996. Because it was a "highly responsible" position that more closely fit within District Administration, the position was later "pulled" from the Family Safety and Preservation Program and transferred to District Administration. On January 8, 1997, Jane Miller (Miller), a black female and at that time a Program Administrator for the Family Safety and Preservation Program, submitted an interoffice memorandum requesting that she be given a 2-step demotion from pay grade 25 to 23, so that she could fill the position. It can be inferred from the evidence that her request for a demotion was due to a legislatively-mandated reorganization in 1997 that eliminated or transferred a number of positions. Because it was in the best interest of the Department, and Miller was fully qualified to assume the position, the Department decided to fill the slot through a demotion rather than from the applicant pool, and Miller's request was granted. After the position was transferred to District Administration, however, she demoted into another position involving day care licensure, rather than 60287. In response to the JOA, Petitioner timely filed his application. On January 14, 1997, he received a letter from the Department which advised that the position was being "filled by an employee who has taken a voluntary demotion with the department to assume this role." Although this ultimately turned out not to be true, when the letter was sent, the Department did in fact intend to fill the position through Miller's demotion, and thus it was an accurate representation at that time. The undersigned rejects the contention that the above letter, without a second letter to applicants explaining what actually occurred later, proves that there was discrimination. As noted above, after the January 14 letter was sent, the position was transferred to District Administration. A short time later, the reorganization of the Department was implemented, and Betsy Lewis (Lewis), a female whose age and race are unknown, filled the slot through a lateral reassignment that became effective on October 27, 1997. Prior to her reassignment, Lewis had held a similar position and was fully qualified. There was no evidence that the Department accepted Miller's demotion, then transferred the position to District Administration, and then laterally reassigned Lewis in order to deny Petitioner employment on account of his age, race, or gender. Position 60288, also an Operations and Management Consultant II, was located at the Department's central office in Tallahassee, Florida. Under current record retention requirements for that office, the Department purges "all records for employment received from individuals seeking employment but [who] were not hired" two years after the application deadline. Because more than two years have gone by since the application deadline, all of the records pertaining to the applicants who sought that position have been purged; therefore, a complete file relating to this position was not available at the final hearing. Position 60288 involved the compilation, analysis, and reporting of substance abuse data for the Department's substance abuse program. After he filed his application, Petitioner was given a telephone interview by Dr. L. E. Stivers, Program Administrator for Policy Integration & Information Systems. Although Petitioner says he had a "congenial interview" with Dr. Stivers, he was not considered because of a lack of proficiency in substance abuse language. Because Petitioner did not believe that knowledge of substance abuse was a prerequisite for a computer-related job in the substance abuse program, he asserted that Dr. Stivers was biased towards him, was "stretching for a reason to eliminate [him]," and used the lack of proficiency in drug abuse language as a pretext for not hiring him. These assertions have been rejected as not being credible. Of the candidates interviewed for the job, only three names were submitted to the Assistant Secretary for Substance Abuse for further consideration. Petitioner was not one of the three. Ultimately, a male (Robert Morrell) whose age and race are unknown, was hired for the job. That individual had direct experience in performing substance abuse data collection in the same department where the position was located, and he was the most qualified candidate. Position 10081, an Operations and Management Consultant II, was assigned to the Northeast Florida State Hospital in Macclenny, Florida. According to the vacancy announcement, the position's duties included "the support, consultation and guidance of the Unit Treatment and Rehabilitation Directors in the development and implementation of policies and procedures in the multi-discipline treatment and rehabilitation of mentally and physically ill residents in the area of Unit Operations." Thus, the position required that the individual have a working knowledge of the treatment of mental health patients and preferably a background in mental health. Petitioner met the minimum qualifications stated in the job announcement document and, along with seven other candidates, was given an interview. All candidates were asked the same questions. Petitioner contended that none of the questions asked were relevant, and most dealt with the "treatment of patients." This is hardly surprising, however, since the facility treats the mentally ill. A contention that the questions were unfair and were framed so as to exclude all "external" candidates has been rejected. The position was ultimately filled by Mary Jane Hartenstein (Hartenstein), a white female who was younger than Petitioner, and who received the highest score of all the applicants. At the time she was hired, Hartenstein served as a Unit Treatment Rehabilitation Director at the facility and was familiar with the treatment of mental health patients. She was the most qualified applicant because of her prior experience. The final position was 012123, a Management Review Specialist in the Tallahassee district office. The position called for familiarity with "planning, information resource planning, legislative budget requests, performance of needs assessment and knowledge of health and human services." John Girvin (Girvin), a white male whose age was the same as Petitioner, was ultimately selected for the job. Girvin had prior experience as a deputy secretary and assistant division director for the Department of Commerce and also served with the Historical Preservation Society. The evidence supports a finding that he was the most qualified person for the job. Notwithstanding the foregoing, Petitioner pointed out that when he had previously submitted his qualifications to his former employer (DOR) in 1996, he received a letter from DOR indicating that DOR "felt" that he qualified for a number of positions within the agency, including a Management Review Specialist. Therefore, Petitioner contended that this affirmation of qualifications by DOR also qualified him for the same type of position with another state agency, including the Department's position 012123. Assuming this to be true, it merely means that Petitioner met the minimum qualifications for such a position; it does not mean that he was the best qualified person for the job. As noted above, a more qualified individual was selected for the position. Petitioner further contended that nothing in the basic job announcement for position 10081 indicated that skills in "psychosocial" services were needed. That document, however, merely identified the minimum qualifications, and further details concerning the specific job requirements could have been obtained from the hospital's human resources office. Petitioner has also contended that existing employees of an agency have an advantage over "external" candidates since they can more easily obtain direct experience in the desired area as well as information about "vital criteria" for the job. Even if this is true, it does not equate to a discriminatory practice within the meaning of the law. Moreover, the evidence here shows that the most qualified person was hired in each instance. Finally, Petitioner asserts that the Department violated various Department of Management Services rules in the hiring process, such as failing to timely notify him after Wilson did not actually demote into position 60287, and ignoring the generic minimum qualifications which apply to similar positions in all agencies. The latter claim has been rejected, but even if a technical error occurred, such as the Department failing to send a second letter regarding position 60287, such action was harmless and was not taken with discriminatory animus. In summary, there was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 13th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Kevin E. Hyde, Esquire Natasha A. Garrison, Esquire Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 Daniel T. Medved, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing, under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Sections 760.11(8) and 760.11(4), Florida Statutes.
Findings Of Fact Petitioner is a 57-year-old male and a former employee of the Respondent. Respondent is an executive agency of the State of Florida with more than 15 full-time employees and is, therefore, an employer under Sections 760.02(6) and (7), Florida Statutes. On May 19, 1995, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations. He charged his former employer, Respondent, with gender and age discrimination for failure to promote him. The Florida Commission on Human Relations conducted an investigation of the charges. It did not issue a Notice of Determination. The staff of the Commission misled or lulled Respondent into inaction, for a period of time, as follows: Day 0000 - 19 May 1995: Charge of Discrimination submitted to Commission. Day 0061 - 19 July 1995: FCHR Notice of Receipt, Docketing and Dual Filing with EEOC. Day 0110 - 6 September 1995: Respondent submitted response to Commission request for information. Day 0255 - 29 January 1996: Petitioner drove from Orlando to FCHR in Tallahassee and met with Iliana Haddock, who advised him that she had just been assigned to investigate the Discrimination Complaint. Haddock took the opportunity to interview the Respondent relative to the complaint. Day 0312 - 26 March 1996: Telephone conversation between Haddock and Petitioner. Haddock stated that she had reviewed all the applications submitted for the Environmental Manager position and had found evidence of age discrimination. Day 0340 - 23 April 1996: Telephone conversation between Haddock and Petitioner. Haddock stated the investigation was almost complete, but they were waiting for Respondent to submit criteria used for determining who would be interviewed for the Environmental Manager position. Day 0431 - 23 July 1996: Petitioner drove from Orlando to FCHR headquarters in Tallahassee and met with Haddock and her supervisor, Harry Lamb. They told Petitioner that Haddock's investigation was completed and that her report would be submitted to Lamb in 30 to 45 days and from there Lamb would submit it to the FCHR legal staff and then it would go to the Executive Director for his approval and determination. Day 0494 - 24 September 1996: Assistant Enforcement Director Singleton sent Petitioner a letter stating that the Commission had not been able to complete the investigation in this case and stated four options of proceeding, (1) file a civil action in civil court; (2) file petition to have case heard by ALJ in DOAH; (3) request a right to sue so I could bring an action in Federal Court; or (4) allow the commission to continue with the processing, investigation and final action in this matter. Day 0509 - 9 October 1996: Petitioner responded to Singleton's letter by pointing out the contradictions between her letter and what Petitioner had been told at the meeting with Haddock and Lamb on 7/23/96. Petitioner requested more information in order to make a decision concerning the future course of this case. Petitioner submitted 11 questions to Singleton. Day 0521 - 21 October 1996: Commission Investigator Iliana Haddock submitted her report to the FCHR Office of General Counsel. Day 0573 - 12 December 1996: Petitioner sent follow-up letter to FCHR Executive Director advising him that he had not received a reply to the 10/9/96 letter to Singleton. Day 0644 - 21 February 1997: Mathis sent Petitioner a letter about the status of the original complaint of discrimination. Mathis stated that Haddock had submitted her report of investigation, with a recommendation for a cause finding to Harry Lamb; that Haddock was no longer with the Commission; that Lamb was no longer with the Commission but had not forwarded the investigation report before he left; and that the report was now in the hands of Otis Mallory. Day 0795 - 22 July 1997: Mathis sent Petitioner a letter advising that the "initial charge is still located in Mr. Mallory's office and will be reviewed." Day 0805 - 1 August 1997: Assistant Director Snell sent Petitioner a letter stating: "The investigation of your first case has been completed and is in the Employment Enforcement Manger's office for review". Day 0809 - 5 August 1997: The EEOC State and Local Coordinator advised Petitioner by letter that the cases were still being processed by the FCHR. Day 0852 - 27 September 1997: Petitioner sent letter to FCHR Executive Director advising him that Otis Mallory had Discrimination Report for almost a year; that Mallory also had received the Retaliation Report in August 1997; and since Mallory now had both reports, he ought to be able to complete his review and move this matter forward. Day 0986 - 29 January 1998: Petitioner sent letter to FCHR Executive Director attempting to get Investigators' Reports through the internal FCHR review system. Day 1076 - 29 April 1998: Commission issued Notice of Determination on Retaliation Complaint. No action on original discrimination complaint. Day 1252 - 22 October 1998: Petitioner mailed Petition for Relief and Administrative Hearing concerning Discrimination Complaint to FCHR. After filing the Complaint of Discrimination with the FCHR, Petitioner actively pursued the progress and status of the Discrimination Complaint with the Commission. In response to his pursuit, the staff of the Commission told the Petitioner throughout the above time-line, that his Complaint was being investigated; the investigation was completed; the report would be submitted; the report was submitted; the report was in for review; and the report would be reviewed. Thus, the Petitioner was misled or lulled into believing by the staff of FCHR not only that the Complaint was going to result in a Determination, but also that the Determination was going to be a cause-finding. On September 24, 1996, a year and four months after filing the Complaint, the Commission advised Petitioner that he had four options relating to the charges, including having the Commission continue with the processing, investigation, and final action in this matter. When Petitioner requested further information so he could make an informed choice, the staff of the Commission failed to respond to his letter. In addition, other staff took no further action on his case. However, Petitioner waited more than two years from issuance of the letter of September 24, 1996, to the filing of his Petition for Relief, dated October 22, 1998. Although Petitioner was misled or lulled into inaction for a period of time by the staff of the FCHR, the Petitioner has failed to demonstrate equitable estoppel or excusable neglect in his failure to file the Petition within a reasonable period of time after the statutorily mandated time limit.
Conclusions The Division of Administrative Hearings has jurisdiction on the parties and the subject matter pursuant to Sections 120.569, 120.57(1) and 760.11, Florida Statutes. The Florida Commission on Human Relations has the authority to investigate a charge of discrimination with alleges that an employee has committed an unlawful employment practice by its failure to promote Petitioner based on his sex and/or age. Section 760.10(1) and 760.11, Florida Statutes. When a complaint has been filed with the Commission, it has the duty to investigate the allegations in the complaint and make a determination within 180 days of the filing of the Complaint, if there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. After a determination is made, the Commission is charged with the duty to notify the aggrieved person and the Respondent of the determination, the date of such determination, and the options available under the law. Section 760.11(3), Florida Statutes. In this case, the Commission failed to make a reasonable cause determination; and three and one-half years after first filing his Complaint, Petitioner requested a formal administrative hearing under Sections 120.569 and 120.57(1), Florida Statutes. Therefore, Sections 760.11(8), (4) and (6), Florida Statutes, applied to this case. These sections read, in pertinent part: In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either: Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or Request an administrative hearing under ss 120.569 and 120.57. The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act. * * * (6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. . . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. . . . * * * (8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause. Although it appears unjust that Petitioner's case should be dismissed because of the failure of a state agency to complete its statutory duty to make a reasonable cause determination, nevertheless, the court in Milano v. Moldmaster, Inc., 703 So. 2d 1093 at 1094 (Fla. 4th DCA 1997) held that the 35-day limitation on requesting an administrative hearing begins to run at the expiration of the 180-day period in which the Commission was to make a reasonable cause determination. Therefore, the Petition for Relief is untimely because it was filed nearly three years after the presumed date of determination of cause by the Commission. See Section 760.11(6), Florida Statutes (1997); Wright v. HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995); Pusey v. George Knupp, Lake County Sheriff's Office, 20 FALR 791 (1997); cf. St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 1st DCA 1990) and Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997). This procedure has been determined to be constitutional, under Florida law. McElhath v. Burley, 707 So. 2d 836 (Fla. 1st DCA 1998). The record does establish some evidence of excusable neglect, which might, under certain circumstances, excuse delinquent filing. See, for example, Machules v. Department of Administration 523 So. 2d 1132 (Fla. 1988). In Machules, the Florida Supreme Court described the parameters of the "equitable tolling" doctrine as follows: Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum. 523 So. 2d at 1134. Petitioner asserts that the staff of the Commission lulled him into inaction. That assertion is accepted as true for purposes of ruling on the Motion for Summary Recommended Order. However, Petitioner is claiming he was lulled into inaction for two additional years after he was advised of his options under the statute. The District Court of Appeal has held that Petitioner may not enjoy a manipulable open-ended time extension which could render the statutory limitation meaningless. It held that a Petitioner should be required to assume some minimum responsibility himself for an orderly and expeditious resolution of his dispute. Milano v. Moldmaster, Inc., supra, at 1095. Although this result is harsh, two other district courts have followed this precedent and it is, therefore, binding on this tribunal. Joshua v. City of Gainesville, So. 2d , 1999 WL 71523 (Fla. 1st DCA, February 17, 1999) and Adams v. Wellington Regional Medical Center, Inc., So. 2d , (Fla. 4th DCA, March 17, 1999).
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98-5090; FCHR Case No. 95-5752. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 1999. COPIES FURNISHED: Gary C. Smallridge, Senior Attorney Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 600 Tallahassee, Florida 32399-3000 Donald A. Garrepy Post Office Box 276 Portsmouth, New Hampshire 03802 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Findings Of Fact On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail. The "Notice of Determination: No Cause" served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with 35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE. The "Notice of Determination: No Cause" also contained the following statement: If the Complainant fails to request an admini- strative 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). Petitioner received the Notice of Determination. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition. DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 18th of March, 1996. COPIES FURNISHED: Lorenzo McGill Route 7, Box 4096 Quincy, Florida 32351 Kimberly L. King, Esquire Messer, Caparello, Madsen, et al. Post Office Box 1876 Tallahassee, Florida 32302-1876 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Ronald M. McElrath, Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 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, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner was discriminated against based upon his race when he was disciplined for absenting his post contrary to Chapter 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Willie B. Smith, is an African-American male. He is now and was at the time of the incidents involved in his complaint employed by the Respondent, Department of Children and Family Services, at Florida State Hospital as a guard in the forensic (prison) unit. The Petitioner is part of a bargaining unit that is represented by the Florida Police Benevolent Association. On November 15, 2001, at approximately 1:05 a.m., the Petitioner contacted his Shift Supervisor, Jimmie Williams, an African-American male, and requested to leave his assigned post in Tower B and go to Unit 3 at the hospital and pick up food from a fish fry. Williams approved the Petitioner’s leaving his post to get the food and to return to his post after getting the food. At 2:35 a.m., Williams was contacted on the radio by the Control Room Officer, Johnny Smith, who indicated that the Petitioner wanted to talk to him on the telephone. Williams provided Johnny Smith a telephone number at which the Petitioner could reach him, and the Petitioner called Williams a short time later. The Petitioner informed Williams that he had spilled diesel fuel on his uniform and asked permission to take the remainder of the shift off. Williams asked the Petitioner where he was, surprised that the Petitioner was some place other than at his post. The Petitioner refused to identify where he was, and Williams denied his request for leave. Realizing that the Petitioner was not at his post, Williams proceeded to Tower B and manned that post until the Petitioner arrived there at 3:04 a.m. When he arrived at Tower B, Williams asked the Petitioner where he had been, and the Petitioner stated he had been at the Florida State Hospital gas station. Williams had checked the Florida State Hospital gas station looking for the Petitioner and was aware that the Petitioner had not been there. At this point, angry words were exchanged and the Petitioner admitted that he had not been at the gas station. Williams wrote up an incident report that initiated a formal investigation into the Petitioner's having absented himself from his post while on duty without proper authorization. The Petitioner was advised of the investigation, and he requested that the PBA represent him in the investigation pursuant to the provisions of the collective bargaining agreement. At the Petitioner's specific request, Steve Mears, from the Tallahassee Office of the PBA, represented the Petitioner in this matter. During the course of a break in a meeting held with regard to the investigation, the Petitioner mentioned to Mears voluntarily changing duty stations, and Mears raised this request with representatives of the Respondent, including William T. Parker, now Chief of Security. As a result, the Petitioner was re-assigned from the forensic unit to the central forensic unit because this was the only place where there was a vacancy. His shift and days off remained the same, which did not constitute a transfer under the terms of the contract. Such a re-assignment was not subject to being grieved under the terms of the bargaining agreement. See testimony of Parker and Mears. The Petitioner's days off changed from the first and third weeks of the month to the second and fourth weeks of the month, but the days of the week remained the same. Although the evidence supports a finding that this move was voluntary, it is not material because, under terms of the bargaining agreement, such a re-assignment was not subject to a grievance. The investigation established sufficient cause for the Respondent to issue an official letter of reprimand to the Petitioner for absenting his post without permission. Pursuant to internal policy, the Petitioner's new supervisor, Roger Howell, who had had nothing to do with the incident upon which the reprimand was based, issued the letter. See testimony of Howell and Bryant. The Respondent introduced the Employee's Handbook, dated Mary 29, 2001, which the Petitioner had received. The book contains the Standards for Disciplinary Action, which include absences without authorized leave. This provision provides that for the first occurrence of Absence Without Authorized Leave, the section under which the Petitioner was disciplined, the violator can be given a range of punishments from a written reprimand to dismissal. See testimony of Bryant. Evidence was received that these penalties have been imposed upon employees of the Respondent without regard to race or gender. See testimony of Williams. At the hearing, the Petitioner expressed his concern that his reprimand had been signed by someone who had no knowledge of the incident, and stated that he felt he had permission to leave his post. He also introduced a doctor's excuse (Petitioner's Exhibit 2); however, the date of the doctor's visit did not relate to the date of the incident. The supervisor who signed the letter of reprimand and the personnel specialist who prepared the letter testified that it was policy for an employee's supervisor to sign the reprimand, even if he or she personally did not have knowledge of the events. Mr. Williams testified regarding his authorization to the Petitioner to leave his post to get food. He was very credible. He expected the Petitioner, in accordance with regular procedure, to leave his post, get his food, and return to the post immediately, being absent from the Tower for approximately 30 minutes. This was the normal process for getting food during a shift. The Petitioner was gone for two hours, and gone for over an hour without Williams being aware that Tower B was not covered. There was significant evidence introduced that none of the actions complained of by the Petitioner were motivated by racial animus. The disciplinary action taken by the Petitioner was at the lower end of penalties that could have been imposed. The complainant, Williams, was also an African-American. The PBA representative, whom the Petitioner specifically requested over the regular one at the hospital, testified regarding the events leading up to the Petitioner's re-assignment. The Petitioner sought a change of assignment and voluntarily accepted the change. See the testimony of Mears and Parker. There was no evidence adduced to show pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 31st day of March 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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, 2004. COPIES FURNISHED: Anita L. Davis, Qualified Representative 708 Brag Drive Tallahassee, Florida 32305 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
