The Issue The issue for determination in this proceeding is whether the denial of an application for employment constitutes unlawful discrimination against Petitioner.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is 1800 Forest Hill Boulevard, West Palm Beach, Florida, 33406. Respondent employs approximately 167 employees. A substantial number of Respondent's employees are certified nursing assistants ("CNA"). Petitioner was denied employment as a CNA by Respondent on July 18, 1991. Petitioner was not denied employment due to his disability of alcohol addiction. Petitioner received an average rating on 11 of 12 interview categories. Petitioner received a below average rating on his personality evaluation. He displayed loud and inappropriate behavior during the interview. He gave his "business card" to two female employees and asked them to call him. A background investigation indicated that Petitioner had been arrested for driving while intoxicated and had a bad credit history. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's application for employment. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's application for employment was based upon Petitioner's failure to satisfy Respondent of Petitioner's competence to satisfy his job requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603 250 Australian Avenue South West Palm Beach, Florida 33401 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Richard Denton 729 N. Ridge Road, Apt. 6 Lantana, Florida 33461
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2014).1/
Findings Of Fact Based on the competent evidence presented at hearing, the following findings of fact are made: Respondent is the state agency which supports persons with autism, intellectual disability, cerebral palsy, Down syndrome, Prader-Willi syndrome, spina bifida, and similar developmental disabilities. Respondent contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. Alliance Community and Employment Services (Alliance) was under contract with the Agency. Persons employed at Alliance in positions of trust were required to complete level 2 background screening. On June 5, 2014, Petitioner was given a background screen as a result of his employment with Alliance, where he was beginning work as an employment consultant. In response to inquiries concerning his arrest on June 5, 1992, in Broward County, Florida, for possession of cocaine, Petitioner stated: I was stopped by the police for a rolling stop violation at a stop sign. The officer searched my car and found some drug paraphernalia. I was charged with a misdemeanor. After further testing of the paraphernalia, the charge was upgraded to possession of cocaine. This happened in 07/1992, twenty-two years ago. Petitioner testified at hearing that he did not plead “nolo contendere” to the charge of possession of cocaine, but only to possession of drug paraphernalia. This testimony is rejected as not credible, however. The allegations in the information that was before the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County clearly indicate not only the misdemeanor charge of possession of drug paraphernalia in violation of section 893.147(1), Florida Statutes, but also possession of cocaine, contrary to section 893.03(2)(a)4. The information is endorsed with the note that Petitioner “pleaded nolo open court.” Court documents similarly indicate that adjudication was withheld on both counts on September 11, 1992. The Court Status form also shows that at arraignment, Petitioner pled nolo contendere to Count I, possession of cocaine, as well as Count II, possession of drug paraphernalia. Finally, the Order of Probation, also dated September 11, 1992, and signed by the Circuit Court Judge shows a plea of nolo contendere to both counts, and this document was also signed by Petitioner. Petitioner pled nolo contendere to the felony offense of possession of the controlled substance of cocaine on September 11, 1992. Petitioner stated: “The status is all clear with the court system. Everything they asked me to do, I did.” There was no evidence at hearing contrary to this assertion. A letter dated October 16, 2014, from the Florida Department of Corrections indicates that based upon computer information, Petitioner completed his probation on August 26, 1994. Many more than three years have elapsed since Petitioner completed or was lawfully released from confinement, supervision, or non- monetary condition imposed for his disqualifying felony offense. In response to inquiries concerning an arrest for battery on November 18, 2011, Petitioner stated: My wife and I had an argument that started in the house and ended outside in front of the neighbors. The police were called and I was arrested. This response only indicated there was an “argument” and did not explain or describe any battery. In response to a question about the degree of harm to any victim, he stated that “there was no harm at all.” A letter dated June 8, 2012, was sent from the Agency for Health Care Administration to Petitioner informing him that Petitioner was granted an exemption from disqualification from employment in a position of trust. Although the letter was not sent until June 8, 2012, it did not take into account Petitioner’s arrest for battery, because the letter was based upon background screening completed on May 7, 2011. Ms. Evelyn Alvarez is the regional operations manager for the Southern Region in the Agency, who has been employed with the Agency for 11 years and with the State of Florida for 26 years. She testified that in her review of Petitioner’s request for exemption, she concluded that Petitioner had misrepresented the facts of the November 2011 battery. She concluded that there were indications of substance abuse and injury to his wife. In his request for exemption, Petitioner admitted that “I used to go drinking with the fellows quite often. I don’t do that as often as I used to.” With regard to drug and alcohol involvement, Petitioner answered: None Drinking--age 15 Marij.--age 15 Cocaine--age 33/2005 stopped have a drink occasionally socially holidays Petitioner’s wife, R.W., did not testify as to the specific events surrounding Petitioner’s November 18, 2011, arrest. When testifying generally about the incident, she stated that Petitioner “lost it,” that she does not “condone abuse,” and that “we got through it” and have “moved on.” She testified that nothing like it had happened before and nothing has happened since. A “Reporting Officer Narrative” describing those events indicated that the arresting officer, “observed and photographed [R.W.’s] injuries which included a large scratch on her right eye and dark red marks on her forehead.”2/ This seems directly contrary to Petitioner’s statement that there was “no harm at all” caused by the incident. The officer’s observations are credited. At hearing, Petitioner testified only that the events of November 18th were “one incident” that “got out of hand.” Documents submitted by Petitioner to Respondent in support of his request for exemption included his bachelor’s degree in business administration from 1983, a Certificate of Completion for the 2011 OSHA Bloodborne Pathogens Quiz, a Certificate of Completion of an Interview Workshop in 2014, a Certificate of Completion of the Professional Placement Network in 2014, a Certificate of Completion of a Resume Workshop in 2014, a Certificate of Successful Completion of Best Practices in Supported Employment in 2014, and a Certificate of Completion of a Social Networking Workshop in 2014. He also submitted a Letter of Recommendation. Passage of time is a factor to be considered in determining rehabilitation, and the disqualifying offense was many years ago. Petitioner’s history since that offense is largely unremarkable, except for the November 2011 incident resulting in his arrest for battery. It is troubling that Petitioner did not acknowledge that a battery took place or testify as to exactly what occurred in this fairly recent incident. He did not address the role, if any, that use of alcohol or other drugs might have played in this incident, or throughout his life. It is found that in stating that the November 2011 incident did not cause any harm at all, Petitioner misrepresented the facts. It is also difficult to understand Petitioner’s failure to acknowledge that he pleaded guilty to both possession of cocaine and paraphernalia. While Petitioner presented some evidence of rehabilitation, that evidence did not clearly and convincingly show that he is rehabilitated. Petitioner failed to prove that he is rehabilitated and that he will not present a danger if he is exempted from his disqualification from employment in a position of trust.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for exemption from disqualification. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 4th day of September, 2015.
The Issue Whether Petitioner, Clarence Goosby, suffered racial discrimination when he was terminated from employment for fighting.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Clarence Goosby, is an African-American, who was employed by Respondent from October 13, 1999, until he was terminated on February 17, 2000. Respondent, Florida Extruders International, Inc., a manufacturing company located in Sanford, Florida, employs approximately 500 employees and is an "employer" as defined in Subsection 760.02(7), Florida Statutes. Some of the manufacturing activities at Respondent's plant are dangerous. One of these activities, melting aluminum scrap, takes place in the Cast House, which is noted as a "restricted area." Workers in the Cast House wear fire- protective clothing. On February 17, 2000, an African-American employee, Broderick Demps ("Demps"), was noticed in the Cast House where he had gone to use the restroom. A Caucasian supervisor, William Wilson ("Wilson"), questioned Demps regarding his presence in a restricted area and was advised by Demps that his supervisor had given him permission to use the restroom. Demps exited the Cast House and was followed by Wilson to another building, the Warehouse, Demps' workstation. Wilson met another supervisor, Frank Witherspoon ("Witherspoon"), as he entered the Warehouse. Wilson and Witherspoon located Demps' supervisor, Warren Lawrence ("Lawrence"), who advised that he had not given Demps permission to enter the Cast House. At this point, Demps began yelling at Wilson; his language was obscene and racial. The other supervisors tried, without success, to control Demps. Petitioner, hearing the altercation, left his work area in the same building, and recognized Demps (who he referred to as his "God-brother"), who continued yelling obscenities at Wilson. Petitioner's supervisor, Kenneth McKinney ("McKinney"), told Petitioner to return to his work area. Petitioner ignored McKinney's directive. Petitioner approached Wilson and the other supervisors and began yelling obscenities and racial slurs at Wilson. While standing in close proximity to Wilson and shouting at him, Petitioner made a quick move with his hand and arm. Wilson, believing that Petitioner was attempting to strike him, responded by striking Petitioner. Demps then struck Wilson in the head, knocking him to the floor. Both Petitioner and Demps jumped onto Wilson, striking and kicking him. Witherspoon, McKinney, and Lawrence physically pulled Petitioner and Demps off Wilson. Petitioner and Demps continued yelling obscenities and racial slurs at Wilson as they were being removed from the Warehouse. Petitioner officiously injected himself into a volatile situation involving Demps and his supervisors. By his confrontational conduct, Petitioner precipitated a physical altercation among himself, Wilson, and Demps. Witherspoon contacted Dana Lehman ("Lehman"), operations manager and highest-level executive at Respondent's plant, by radio and advised him of the altercation. Lehman immediately went to the Warehouse, where a crowd of employees had gathered in addition to the individuals mentioned hereinabove. Lehman inquired of several employees regarding the altercation but no one reported having seen it. Lehman attempted to speak to Petitioner and Demps about the incident. Petitioner and Demps were confrontational; Lehman obtained no relevant information from them. Lehman questioned McKinney, Lawrence, and Witherspoon and received their reports regarding the incident, which are detailed hereinabove. Wilson confirmed the descriptions and observations of the three supervisors/witnesses. McKinney, Petitioner's supervisor, recommended to Lehman that Petitioner be terminated for unauthorized leaving of his work area and instigating a fight with a supervisor. Respondent had in the past terminated several employees of different ethnicities for fighting. Respondent's employees' handbook (Policies and Procedures Handbook) reads, in pertinent part, as follows: Conduct Meriting Immediate Discharge Certain actions are such serious breaches of responsibilities to the company that no prior warnings or probation notices are required and may result in immediate discharge. For example: * * * Fighting or hitting another employee, or similar disorderly conduct, during work hours or on company premises. Willful disobedience (insubordination) Petitioner was aware of Respondent's prohibition against fighting and insubordination. Lehman discharged Petitioner on the day of the incident for fighting and insubordination.
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 the Petition for Relief filed in this case. DONE AND ENTERED this 9th day of July, 2003, 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 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 July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 James W. Seegers, Esquire Valencia Percy Flakes, Esquire Akerman Senterfitt 255 South Orange Avenue Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 32-year-old male who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 120-page report entitled "Exemption Review" dated November 17, 2014. See Resp. Ex. B. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below: May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld; April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld; May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation; June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation; January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims. However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains from a victim's neck.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 17th day of June, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 17th day of June, 2015.
The Issue The issue is whether Petitioner was subject to an unlawful employment practice by Respondent, Meals on Wheels, Etc., Inc., on account of his race and disability, as a result of Respondent's maintenance of a hostile work environment, or as retaliation to his opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact As its name implies, Respondent is a non-profit charitable organization engaged in the business of providing free meals, transportation services, and related assistance to senior citizens in the Sanford, Florida, area. Petitioner is a 64-year-old black male of Jamaican origin. He worked as a driver for Respondent from August 13, 2012, until October 23, 2014, when he was discharged for violating a company policy. As a condition of employment as a driver, Petitioner was required to submit a medical fitness form regarding his current medical condition. In the form filed on July 30, 2012, he denied having any medical issues except non-insulin dependent diabetes, which is controlled by diet. See Ex. 21. An updated form was submitted on August 25, 2014, reflecting no change in his medical condition. Id. No other medical records were submitted to substantiate any other medical condition. When he interviewed for the position, Petitioner did not tell Respondent that he needed an accommodation for his diabetes or that he had any work restrictions. As such, management never considered Petitioner to have a disability. Petitioner also provided a post-employment medical questionnaire on August 8, 2012, which stated that he had diabetes but that it was controlled by diet. Id. No other injuries, illnesses, or health abnormalities were reported. As a driver, Petitioner was expected to adhere to Respondent's safety rules. To ensure compliance with the rules, shortly after being hired, Petitioner was required to read, and then sign a statement acknowledging that he understood, the organization's General Policies. See Ex. 1, p. 4. He was also required to acknowledge receipt of its Employee Handbook containing the Safety Policies and Procedures. See Ex. 3. In addition, Respondent's Transportation Coordinator, Mark Taylor, conducted periodic refresher training sessions with all drivers, including Respondent. One of Respondent's most significant safety rules, if not the most significant, is a rule that requires drivers to provide door-to-door service. It provides in relevant part that "[u]pon arrival at a client's home, [a driver must] go to [the] door and knock. If the client needs help, you will be right there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to promote client safety and to ensure, to the extent possible, that Respondent will not face legal exposure because, for example, a client falls down while walking unassisted to or from the vehicle. To comply with the above rule, drivers are required to get out of the van, go to the front door, knock, and then assist the client walking to the van. This is because the clients are elderly, some use walkers, and they need assistance from the driver while getting to and from the van. On August 21, 2014, Petitioner signed another statement acknowledging that he understood the policy, he agreed to follow it at all times, and he understood that "[t]ermination will result in not following this important safety rule." Ex. 7. As a corollary to the above safety rule, drivers are instructed that they should never honk the vehicle's horn when they arrive at a client's home. Instead, they should get out of the vehicle and go to the front door of the residence. Petitioner was specifically told about the no-honking rule at two safety meetings. The incident underlying Petitioner's discharge occurred on the morning of October 23, 2014. Petitioner was told to pick up Angelo Rosario and transport him to an appointment. The client is in his 80s, suffers from Alzheimer's disease, and uses a walker. He resides in a mobile home-type community with his daughter; and the driveway in front of the mobile home is unpaved with exposed roots making it easy to trip or fall. Although Mr. Rosario was not one of his regular clients, Petitioner had picked him up at least 12 times in the previous 30 days and was familiar with his condition and the area in which he lived. The testimony describing the incident is conflicting. However, the accepted testimony shows that Petitioner arrived at the Rosario residence while Petitioner was on a personal cell phone call to his sister. When he finished the call, Petitioner blew the horn to alert the client that he was there. The honking was loud enough to annoy Rosario's neighbor who approached Petitioner's vehicle complaining about the noise. Suspecting that the neighbor's concern might cause a problem, Petitioner immediately telephoned Mr. Taylor and told him that he had blown the horn and anticipated that someone might be calling him with a complaint. Mr. Taylor told Petitioner that honking the horn was inappropriate, it violated an important safety rule, and he could not just sit in the van waiting for the client. Petitioner admits that during the telephone call, he shouted at Mr. Taylor and claimed he was unaware of the rule. After Mr. Taylor instructed Petitioner to go to the front door to pick up the client, Petitioner exited the vehicle and escorted the client to the van. After speaking with Petitioner, Mr. Taylor immediately telephoned the client's daughter to get her version of events. Mr. Taylor learned that honking had recently occurred rather frequently at the client's home, and he believed that Petitioner was the responsible driver, as Petitioner had transported the client at least 12 times during the previous 30 days. Mr. Taylor immediately reported the incident to the Executive Director, Sherry Fincher, who evaluated the matter, and then decided to terminate Petitioner for violating the organization's most important safety rule. Notwithstanding Petitioner's claim to the contrary, it is the Executive Director alone, and not Mr. Taylor, who makes the decision to terminate an employee. A memorandum was prepared by Ms. Fincher that day indicating that Petitioner was being terminated "due to not following agency policies regarding door-to-door pick up of clients[,] . . . one of the most important policies to ensure the safety of all clients." Ex. 20. This was consistent with Respondent's policy, and one that Petitioner clearly understood. Petitioner's race and diabetic condition played no role in the decision. Petitioner's Employment Charge of Discrimination was filed one month later. Prior to that time, there is no competent evidence that Petitioner had ever complained to Taylor or Fincher about any discriminatory practices by the organization. Since the inception of this case, Petitioner has contended that he has a disability within the meaning of the law. At hearing, however, he acknowledged that his diabetic condition does not affect any major life activity. To support his disability discrimination claim, he testified that on an undisclosed date in 2014, he asked Mr. Taylor if he could eat meals or snacks at designated times because of his diabetic condition but was told he could not. The accepted testimony shows, however, that Mr. Taylor advised him that he could eat whenever necessary, as lunch and break hours are not set in stone. To avoid a drop in his blood sugar, Petitioner was told that he was free to eat or drink something at any time, or even bring a bag lunch with him while driving his routes. Even assuming arguendo that Petitioner had a disability, which he does not, the contention that a disability formed the basis for an unlawful employment practice must fail. Petitioner also contended that Belinda Stum, a white female lead driver, was treated differently than he and was given more "leeway" when she violated a rule. However, the only evidence concerning a rule violation by Ms. Stum involved a different rule. After a client accidentally slipped while being assisted out of the van, Ms. Stum immediately reported the incident to Mr. Taylor and then filed a completed incident report. Other than Ms. Stum, Petitioner was unable to specifically identify any other similarly-situated employees outside his protected class (or even ones within his own class) who were allegedly treated differently than he. Although a client testified at hearing that on several occasions she had observed Ms. Stum sitting in her van when picking up clients, even if this is true, the client admitted that she never reported this to anyone at Respondent's organization so that the alleged violation could be investigated and disciplinary action taken, if appropriate. Petitioner also contends he was subjected to a hostile working environment due to his race and disability. He claimed that Mr. Taylor, a white male, called him "boy," required him to answer "yes sir," and would gesture a "cut throat" sign towards him, threatening him to keep his mouth shut. This assertion was not corroborated by any other evidence, and Mr. Taylor denied the charge. The testimony of Mr. Taylor is accepted as being more credible on this issue. Assuming arguendo that he had a disability, there is no evidence whatsoever that Petitioner was subjected to a hostile working environment due to his diabetic condition. Finally, there is no evidence regarding the charge that Petitioner was terminated in retaliation for engaging in a protected activity. Indeed, Petitioner submitted no credible proof that he complained to management regarding any discriminatory practices that precipitated the alleged retaliation, other than "standing up for his rights" on the day he was terminated, and Taylor and Fincher credibly testified that they were unaware of any such complaints. Complaints made at hearing that he is still owed money and was never paid for training are not germane to this dispute. Petitioner is now working part-time as a driver for a retirement center in the Sanford area. He says he is also employed as a substitute teacher for the Seminole County School Board. Both jobs equate to full-time employment. According to evaluations and testimony at hearing, Petitioner was considered a "good worker," "likeable," and someone who "did a pretty good job." While his evaluations showed he met expectations, his last evaluation noted that he needed improvement in following orders. Except for being "written up" one time for being late to work, Petitioner had no other disciplinary action.
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 the Petition for Relief, with prejudice. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 24th day of November, 2015.
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter." The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times. While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist. Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working. Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her. Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3 In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off. To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work. Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed. In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4 Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination. DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 3rd day of April, 2006.
The Issue Whether Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, 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 12th day of January, 2018.
The Issue The issue in this case is whether Petitioner, Kenneth Gilbert, should be granted an exemption from disqualification to work as a direct service provider with the developmentally disabled pursuant to Chapter 435, Florida Statutes.
Findings Of Fact On December 23, 1997, B.H. filed a Petition for Protection Against Domestic Violence in the Circuit Court of the 14th Judicial Circuit, Jackson County. The Respondent in the case was Kenneth Gilbert. B.H. alleged that on December 22, 1997, Mr. Gilbert committed acts of domestic violence including entry into B.H.'s home on December 22, 1997, after she denied Mr. Gilbert permission to enter. B.H. averred that Mr. Gilbert committed a battery upon her and made physical threats of violence to her. She further averred that Mr. Gilbert ripped a phone off of the wall. A Final Order of Injunction For Protection Against Domestic Violence and Order to Law Enforcement was entered on December 29, 1997. The injunction order provided, in part that "an immediate and present danger of domestic violence exists and that irreparable harm and injury will probably occur in the form of violence to Petitioner or persons lawfully with Petitioner unless this injunction is made permanent." Mr. Gilbert was ordered to "not come to any place where Petitioner [B.H.] is located" and "not harass, shadow, threaten or intimidate Petitioner." On May 4, 1998, Kenneth Gilbert was arrested by the Jackson County Sheriff's Department for the criminal offense of violating the injunction referred to in paragraph 2, above. B.H. drove into a gas station where Mr. Gilbert was, and Mr. Gilbert approached her car and attempted to kiss her. This created a disturbance and Mr. Gilbert was arrested. On May 5, 1998, the court detained Kenneth Gilbert on the charge of Violation of an Injunction for Protection Against Domestic Violence, a misdemeanor of the first degree pursuant to Section 741.31, Florida Statutes (1998). Kenneth Gilbert was referred by the court to pre-trial intervention and a counseling program called the Group Assistance Program. Although the program to which he was referred was a 26- week program, Mr. Gilbert was permitted to terminate participation after only 14 weeks for financial reasons. Based upon Mr. Gilbert's participation, the State's Attorney's Office ultimately dropped the Violation of an Injunction charge. Mr. Gilbert appears to have learned a great deal in these sessions. B.H. and Kenneth Gilbert have a daughter approximately two years of age. There have been continuing disputes regarding visitation and the unannounced appearances by Mr. Gilbert at B.H.'s place of residence. Petitioner indicated his desire to support and care for his daughter. B.H. does not want to have contact with Petitioner and views his desire to see the child as disruptive. No court ordered visitation has been established. B.H. works at the Sunland in Marianna and is familiar with the care required to be provided. She opined that Petitioner could provide such care without risk to residents based on her knowledge of Petitioner and the work. B.H.'s allegations of continued threats of personal violence by Kenneth Gilbert are not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered by the Department of Children and Family Services granting Petitioner's request for an exemption from disqualification pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. 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 27th day of May, 1999. COPIES FURNISHED: Kenneth Gilbert Post Office Box 522 Greenwood, Florida 32443 Steven Wallace, Esquire Department of Children and Family Services Suite 252-A 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 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
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 the Petition for Relief from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2006.
